HC Deb 08 November 1961 vol 648 cc1042-112

Order for Second Reading read.

6.27 p.m.

The Secretary of State for Commonwealth Relations (Mr. Duncan Sandys)

I beg to move, That the Bill be now read a Second time.

I have it in Command from the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Bill, has consented to place Her prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

The Joint Under-Secretary of State for Commonwealth Relations (Mr. Bernard Braine)

The object of the Bill is to confer upon Her Majesty the power to amend or revoke by Order in Council any part of the Constitution of Southern Rhodesia and to grant a new Constitution. The House has already had two opportunities of discussing the circumstances leading up to the proposals for a new Constitution for Southern Rhodesia.

First, we debated the Report of the Constitutional Conference on 23rd March and then the detailed proposals were set out in two White Papers, on which we had a lively and informed debate on 22nd June. The arguments for and against the proposals were very fully aired. While hon. Members will not expect me, I hope, to repeat all the arguments I used on that occasion, it may be helpful if I recapitulate briefly the events leading up to the new constitutional proposals, and describe what those proposals are, before proceeding to explain the Bill itself.

It was in 1959 that Sir Edgar Whitehead suggested to Her Majesty's Government that the time was ripe for a review of the Constitution under which Southern Rhodesia had been governed since 1923. That Constitution gave Southern Rhodesia a considerable measure of responsible self-government in her internal affairs, subject to certain powers being reserved to Her Majesty's Government here. This has meant that the Southern Rhodesian Legislature cannot legislate on a specific range of subjects without the Act in each case being reserved for signification of Her Majesty's pleasure.

There is no doubt that Southern Rhodesia has achieved considerable progress under this Constitution. But, equally the conditions under which it was granted, almost forty years ago, have changed out of recognition and are changing still. The African population has grown enormously in numbers, in education and in political awareness, and a new class of African master farmers and business men has emerged. The European population, too, has increased in numbers and also in experience of modern methods of government and in understanding of the demands which a multi-racial society must make upon them. The Europeans know that when Africa is changing around them they, too, must change.

Thus it was inevitable that a point would be reached when Africans would claim a growing share in the government of their country and when the Europeans would feel that their industry, energy, initiative and savings had created an efficient State and a flourishing economy and that the responsibilities which still remained vested in Britain should be transferred to Southern Rhodesia.

Following Sir Edgar's approach, there were long and detailed discussions between our two Governments, culminating in the Constitutional Conference held in Salisbury last February and presided over by my right hon. Friend. All the interested parties, African, European, Asian and Coloured, were represented. The Report of the Conference was contained in a White Paper, Cmnd. 1291, of February, 1961, and it was debated on 23rd March.

I will not go through the Report in detail because the recommendations of that Conference were subsequently embodied in White Papers, along with the measures which have been subsequently agreed and which were left over from the Conference, especially on the subject of land. They were published in the White Papers, Cmnd. 1399 and Cmnd. 1400, which were fully debated in the House and approved by a majority on 22nd June. The next step was faithfully to embody the proposals contained in the White Papers in a draft Constitution and, I am glad to say, work on this is almost complete.

Everyone is agreed on the necessity for constitutional change in Southern Rhodesia, but I must make it plain that we would never have agreed to give up our reserved powers unless we were certain that they could be replaced by adequate safeguards. My right hon. Friend has demonstrated more than once that the reserved powers are negative in character and have never been used and that we should not imagine that by their use we could promote a constructive, forward-looking, liberal policy unless the people of Southern Rhodesia themselves wanted that. Indeed, we are convinced that the safeguards which we propose should be written into the Constitution will be more effective than the present reserved powers.

As agreed at the Constitutional Conference, these new safeguards will consist of a comprehensive Declaration of Rights and a Constitutional Council. The job of the Consitutional Council is to examine all legislation passed into force after the new Constitution comes into operation, the Council having the power to delay proposed legislation which it considers inconsistent with the Declaration of Rights. Whether any law is declared inconsistent with the Declaration of Rights by the Constitutional Council or not, the law can be declared invalid by the courts. Arrangements will be made for an inalienable right of appeal to the Privy Council.

I know that it is sometimes argued that by their very existence, even if they were never invoked, the reserved powers served a useful purpose and might have prevented legislation from being passed which Governments here in Britain might have felt bound to disallow. There may be something in that argument, but I am sure that hon. Members will agree that powers which have never been used, and which are known to have been difficult to use, are a far less effective deterrent than the existence of courts to which the common man can look for the defence of his rights. One of the most impressive things which emerged from the Constitutional Conference was the high regard of the African representatives there for the courts and the judges of Southern Rhodesia. The idea that the Declaration of Rights should be enforceable by the courts strongly appealed to them.

In the course of our debate on 22nd June, some hon. Members expressed concern that the Declaration of Rights was not to be made retrospective so that all discriminatory legislation on the Statute Book on the day that the Constitution came into force would be swept away. But that point was agreed by the Constitutional Conference. In coming to a balanced judgment, one must take account of the changes which have been coming to Southern Rhodesia—changes which very few of us, either there or here, would have expected a few years ago—in particular the readiness of Europeans to accept that discrimination must go if one nation, firmly rooted in justice and sharing common loyalties, is to be created in this part of Africa.

This readiness is already finding practical expression. As my right hon. Friend said in the House on 19th March, the Southern Rhodesian Government have already undertaken a systematic review of their Statute Book and have already removed from it a number of Acts of a discriminatory nature, while other discriminatory legislation has been amended.

Mr. Elwyn Jones (West Ham, South)

Is it not a disturbing fact that some of the most oppressive and Draconian legislation was introduced in 1960? Is not that rather discouraging when one considers the future which may be in store?

Mr. Braine

I do not think that that is discouraging. Some discriminatory legislation has already gone, while other discriminatory legislation is being amended. The whole atmosphere in Southern Rhodesia, particularly in the last few months, has changed in a way which very few people would have thought possible only a relatively short time ago. It is fair to make the point that it would not serve the immediate interests of Africans to be indiscriminate in the removal of discrimination, if I may put it that way. If the Declaration of Rights were applied retrospectively, there might be called in doubt a number of Statutes which are, in fact, advantageous to Africans, or designed for the protection of Africans at this stage of development.

I think that all hon. Members will agree that the test is whether discrimination, where it occurs, is unfair. Our view is that it is far better to approach the task of ending discrimination in an orderly manner than to invite the chaos which would arise from sweeping away all discriminatory legislation and putting into a state of uncertainty a number of laws until their consistency or otherwise with the Declaration of Rights had been pronounced upon by the courts.

The other two features of the Constitution to which 1 wish to refer are the arrangements for representation and the franchise, and for amendment to the Constitution. Under the existing 1923 Constitution, power to make laws regarding the qualifications of voters rests with the Legislative Assembly. The composition of the Assembly is a matter upon which the Legislature can make laws, although Bills for that purpose are required to be reserved for signification of Her Majesty's pleasure.

In the new Constitution provision will be made for certain minimum qualifications for the franchise, and these qualifications cannot be raised, in the sense that they will limit opportunities for registration of voters, so as to decrease the number of voters, without invoking a very powerful new safeguard —a referendum at which the four principal racial groups will have their votes separately counted and which will be declared to have failed unless each group's votes show a majority in favour of the proposal.

On the other hand, a change in the qualifications which would have the effect of giving the vote to more people —an improving change of that kind— will be within the power of the Legislature and it will not be in the power of any one race to hold it up, provided it secures a two-thirds majority in the Assembly.

The effect of these new arrangements for the franchise and the composition of the Assembly should be to give Africans a minimum of 15 seats, perhaps more, in a House of 65 at the first General Election, and no doubt an increasing number after that. They will also give to a great many more Africans than at present the opportunity to register as voters and to exercise an influence on the election of candidates to fill the remaining seats.

This is a considerable advance on the present position where there are no Africans in the Assembly at all. It provides an opportunity for an increasing number of Africans to make their voices heard, and rightly so, in the running of their country's affairs, but it does so in a way which ensures that each race has to take some account of the views, the interests, and the feelings of the others.

This is the point I want to emphasise. Whatever may be the final racial composition of the Assembly after the first General Election, these franchise proposals are framed expressly to ensure the return of those who put the interests of their country rather than their race first. The system of cross-voting and devaluation which was described in detail in the White Papers means that each candidate has to pay regard to the interests of both racial groups.

Mr. Michael Foot (Ebbw Vale)

Moss Side.

Mr. Braine

I am not quite sure what the hon. Gentleman said a moment ago, but if he is questioning the arrangements, perhaps I had better repeat them.

The system of cross-voting and devaluation described in the White Papers ensures that candidates in both "A" roll constituencies and "B" roll electoral districts have to pay regard to the interests of both racial groups if they are to secure election. It is this, more than anything else, which will determine the outlook and behaviour of the new Legislature.

As to amendment of the new Constitution, Southern Rhodesia will be free to do this without reference to Britain, with the exception of amendments which affect the position of the Sovereign and the Governor, and the right of the British Government to safeguard the position regarding international obligations and undertakings given by the Southern Rhodesia Government in respect of loans under the Colonial Stock Acts.

As agreed at the Constitutional Conference, with the exception of certain basic clauses, the Legislative Assembly will be able to amend any other section of the Constitution by a two-thirds majority of its total membership.

Where the basic clauses are concerned —and they relate to the Declaration of Rights, the Constitutional Council, appeals to the Privy Council, alteration to the franchise, safeguards on the subject of land, the security of Civil Service pensions, and amendment of the Constitution itself—it will be necessary, in addition to securing the two-thirds majority of the Assembly, to obtain the agreement of a majority of each of the four principal racial communities. The Constitutional Conference thought that that was an adequate safeguard, and we do too.

Alternatively, if it so decides by a two-thirds majority, the Legislative Assembly may, instead of referring the issue to a referendum, seek the approval of the British Government for the constitutional changes they desire, but the British Government of the day will be at liberty to decide whether they consider it would be more appropriate to refer the matter to a referendum of the four racial communities.

I come now to the Bill itself. Perhaps I should first explain why a Bill is necessary. The present Constitution of Southern Rhodesia was granted in 1923 by Letters Patent made in exercise of the Royal Prerogative. I understand that it is an established constitutional principle that once the Crown has conferred by Letters Patent responsible government on a dependent territory, it is considered to have parted with its prerogative right to legislate in regard to those matters which under the Letters Patent are placed within the competence of the local legislature.

In the present Southern Rhodesia Constitution, the Crown reserved to itself full power by the prerogative to revoke, alter, or amend, only twelve of the sixty-four Sections of the Constitution. The remaining Sections can be amended only by the Legislature of Southern Rhodesia.

To introduce the new Constitution, therefore, it would have been possible for the Crown to have amended those twelve sections and for the Southern Rhodesia Legislature to have amended the remainder of the Constitution. Although it is intended to retain the substance of a good deal of what was in the original Constitution, it would not be practicable to introduce the far-reaching changes which we and Southern Rhodesians desire by way of further amendments to the existing Constitutional documents. The Government of Southern Rhodesia have therefore requested that the new Constitution should be contained as a whole in a new document, and we have agreed. This can be made possible only by an Act of Parliament, for the reasons I have explained.

Clause 1 (1) of the Bill therefore confers on Her Majesty the power to grant a new Constitution by Order in Council. Hon. Members may have noticed that specific provision is made for the Order to confer on the Southern Rhodesia Legislature power to make laws having extraterritorial effect. This is necessary and desirable because the present lack of extra-territorial application of Southern Rhodesia's legislation makes for a certain amount of administrative difficulty. One example which springs to mind is that at present there is no power to punish in Southern Rhodesia a person belonging to that country who happens, whilst outside the country, to perjure himself in an affidavit used in Southern Rhodesia. This is clearly an unsatisfactory state of affairs, and the Bill will enable a change to be made in this and similar anomalous situations.

Clause 1 (2) makes it possible for the Order in Council containing the new Constitution to specify how that Constitution can be amended or revoked in the future. Thus it will provide for the Legislature of Southern Rhodesia to have full power to amend all Sections of the Constitution except those which refer to the constitutional functions of the Queen and the Governor. These Sections can be amended only by Order in Council. The effect of the subsection is to make it quite clear that in future the new Constitution will be amendable only by these two methods.

If after a new Constitution were granted it was desired to amend it in a way not authorised by the Order in Council, a further Act of our Parliament would be necessary. There would, of course, be no question of the British Government asking Parliament to legislate in a situa- tion like that without the agreement of the Southern Rhodesia Government. That follows a convention clearly set out in the introduction to the White Paper, Cmnd. 1399, which the House debated in June

Clause 1 (3) takes us back to the case where, after the new Constitution has been granted by Order in Council, it is desired to alter by means of an amending Order in Council any of the Sections reserved specifically to the Queen under that Constitution. The subsection provides that such an amending Order shall be a Statutory Instrument within the meaning of the Statutory Instruments Act, 1946. That means that it will have to be laid in Parliament before coming into operation, and it will have to be properly printed and numbered.

Clause 1 (4) provides for the laying before Parliament, after being made, of the Order in Council containing the Constitution and any other instrument made subsequently under the authority of that Order. This will place these Orders in Council on precisely the same footing as those made under the British Settlement Acts and the Foreign Jurisdiction Act, under which the Crown is empowered to legislate generally for our overseas dependencies.

Mr. Sydney Silverman (Nelson and Colne)

Does this mean that the Order in Council must be made by affirmative Resolution in the House, or is it subject to the negative procedure?

Mr. Braine

I am glad that the hon. Member has made that point, because it enables me to explain the matter. It is not the custom for Orders in Council which are constitutional instruments to be debatable. The normal custom—and it was followed in this case—is to lay the proposals before the House in the form of White Papers, which are debatable. It is always within the competence of Parliament to put down a Motion.

Mr. Silverman

Does that mean that unless a Motion is put down and the Government find time for it to be debated, once the Bill is enacted any changes made by the Government by Order in Council are not subject to scrutiny or debate, or a vote of the House? Is that right?

Mr. Braine

Broadly speaking, it is— and it is right that it should be so. I believe that this is the third occasion on which we have debated this matter. The Constitution which will be promulgated in the Order in Council will follow faithfully the proposals set out in the White Paper which the House has already had the opportunity of examining and debating. We cannot go on endlessly debating a Constitution which has been agreed with the territory concerned.

My right hon. Friend proposes to advise Her Majesty to grant, by Order in Council under the Bill, once enacted, a Constitution which will follow the White Papers in every detail. It will include a few minor points for which provision has to be made, which were not mentioned in the White Papers, since these, of necessity, were expressed in layman's language. This is merely to obtain the necessary legal precision. The important Declaration of Rights, however, will be incorporated in its entirety, although there may be a few insignificant drafting amendments. Once the Bill becomes law the Order in Council will be made here without delay. The way will then be clear for the Southern Rhodesian Government to take the necessary steps, as set out in the introduction to the White Paper, Cmnd 1400, to bring the new Constitution into force.

In commending the Bill to the House, may I say that the Constitution represents a great forward step for the people of Southern Rhodesia. The essence of the matter is that while both the franchise and representation are widened to give Africans greater opportunities than they have had before, the alteration is made in this case in a way which lays stress on the importance of all races in that country recognising their interdependence, at the same time ensuring responsibility in the direction of their Government. I hope, therefore, that nothing is said in the course of this debate which will discourage Africans from registering as electors, under the new Constitution, and so exercising the opportunities which are undoubtedly theirs if they choose to grasp them.

6.55 p.m.

Sir Frank Soskice (Newport)

1 beg to move, to leave out from "That" to the end of the Question and to add instead thereof: this House cannot assent to a Bill which is intended to implement constitutional proposals which fail to provide for the African people of Southern Rhodesia either adequate safeguards against discrimination or adequate representation in the legislature. Hon. and right hon. Members on this side of the House have weighed carefully the proposals set out in Cmnd. 1400 to see whether they afford the whole population of Southern Rhodesia safeguards which are adequate to replace the very substantial reserve powers at present vested in Her Majesty. Weighing the two, we have come to the conclusion that those safeguards are by no means adequate. We have not come lightly to that conclusion, and we approach the debate with the anxiety that anything we say in the course of it will not aggravate the already difficult position in Southern Rhodesia. But we feel it is our duty, having become thoroughly convinced that the proposals are not adequate, to voice our reasons in this Chamber, so that they may be known and so that the answer may be given by the Secretary of State tonight, if there is an answer.

As the Joint Under-Secretary has already said, this is not the first occasion on which these proposals have come before the House for debate. The report of the conference was first discussed, and then the Government laid the two White Papers, Cmnd. 1399 and Cmnd. 1400, to which reference was made by the hon. Gentleman in his opening speech. Those two White Papers were also the subject of discussion. The Minister traced briefly what happened since the constitutional conference took place, but he did not mention that a referendum on the proposals was held in July of this year, and that the referendum produced a 2–1 vote in favour of the proposals. The point I want to make on that vote is that about 40,000 votes were cast for and 20,000 against, that is to say, a total of over 60,000. But the National Democratic Party also held its own referendum, decisively rejecting the proposals. On any view, that cannot be regarded as a satisfactory situation. Although the proposals were approved, the Africans in their own referendum decisively rejected them, and yet in the referendum approving the proposals only 6,000 Africans were qualified to vote.

I make that introductory point because I want later to submit that the new A and B roll proposals embodied in the Constitution, although undoubtedly an improvement on the existing situation—15 votes being anchored to the B roll— are by no means adequate to meet the need. There is a very long way to go. I want to go back to that later. I greatlv hope that in criticising the proposals now under consideration we shall not be thought to be anti-European. That taunt has been thrown across the Floor of the House before and it is utterly unmerited. It is elementary and obvious that it is in the interests of the European population no less, perhaps even more, than in the interest of the African population that there should be a peaceful situation, in Southern Rhodesia which could lead to a lasting, a fruitful and a real cooperation between the races.

If these proposals leave Southern Rhodesia in a situation in which the vast majority of the population, about 3 million Africans, are not content, then that is a situation which augurs ill not only for the Africans but even for the Europeans. Therefore, in criticising the proposals we do so in a genuine desire to try to point the way to something which will lead to the really desirable situation which hon. Members of both sides of the House desire to see.

I say "on both sides of the House" and I include particularly the Secretary of State, because he obviously did his best, in the course of difficult negotiations, to try to get a satisfactory result. In criticising, I do not criticise his endeavours but the result which he has produced. In my view, and in the view of hon. Members on this side of the House, that situation does not measure up to the minimum requirements which were indispensable. After all, those minimum requirements should create a situation in which the Law and Order Maintenance Act, which led to the resignation of the Chief Justice of Southern Rhodesia, should not be necessary;a situation in which Detention Ordinance should not be necessary;in which the Vagrancy Act should not be necessary;in which the Monckton Commission should not think it appropriate to say, speaking of federation and with particular reference to Southern Rhodesia, that it was racial discrimination which was making the further passage of federation a difficult one;and, as I say, making particular reference to Southern Rhodesia.

That is a situation which I am quite sure the Secretary of State deplores as much as anybody else but which exists undoubtedly and which these proposals, in the submission I make to the House, will certainly not go anywhere near the necessary lengths to improve. We are bound to criticise these proposals because as the Minister has already said this is our last opportunity. They are only proposals. We have not the text of the Constitution before us. The Order in Council will not be subject to any parliamentary procedure. The proposals will be embodied in the context of an Order in Council which we shall not have an opportunity to discuss in this House. The only language which we have which will form part of the Order in Council is that contained in appendices 1 and 2 to Cmnd. 1400 which contain proposals for the suffrage, and in Appendix 2, the proposed Declaration of Rights.

I understand from the Minister that even that language is to be subject perhaps to some slight changes. We do not know what the changes are or whether we should regard them as slight. They may be of importance because a great deal can turn on a phrase used or a particular expression embodied in the text of a Constitution. So here we have our last opportunity to voice our criticism.

In approaching this debate I start from the position of the Government and and I will say why in a moment. The present situation is that the United Kingdom Parliament has substantial powers of reserving Measures so far as discrimination is concerned. I should like to read out the relevant part of Section 28 of the Southern Rhodesia Constitution which vests in the Parliament of the United Kingdom the most effective powers of preventing discrimination against any section of the population of Southern Rhodesia. There has to be reserved for the Crown any law whereby natives may be discriminated against or made liable to any conditions, disabilities or restrictions to which persons of European descent are not also subjected or made liable. It could not go further than that. That is about as comprehensive and drastic as any language could be. It is that language which we are asked to agree should be forgone. It is that power which is to be lost to the United Kingdom Parliament, as I think for ever, and it is only one of many powers which enables the United Kingdom Parliament in the terms of the 1923 Constitution to control the legislation of the Southern Rhodesian Parliament.

It is said, the Minister has repeated it again, that that power has never been exercised, and that is perfectly true. But it has equally been pointed out in reply to that contention that its very existence has been of great importance in modifying policies in Southern Rhodesia. It has always been there and any Southern Rhodesia Legislature has known that there is a control which in case of need could be exercised over legislation passed by the Southern Rhodesia Legislature.

I would add this further comment to what has been said by the Minister. We are now faced with a new Africa. The pace has quickened. It has not been exercised in the past but we now have a situation in which African countries are, one after the other, gaining their independence. We welcomed one to independence this afternoon. Even in those countries which have not gained their independence substantial advance has been made, particularly in the matter of franchise, over the franchise proposals contained in the White Paper which we are discussing.

It is, as I say, in those circumstances that I start from the position which the Secretary of State earlier took as his test. We start from the situation that it was Sir Edgar Whitehead himself who, in 1959, proposed to the Government of the United Kingdom that the Government should cede their reserve power. If the initiative had not come from the Southern Rhodesia Government, nothing would have been done about the ceding of these powers. It was the original proposal made by the Southern Rhodesia Government which has brought the whole thing before this House.

The test that was then propounded was stated by the Minister of State in May, 1960, to this House when he said that the attitude of the United Kingdom Government to the initiative of Sir Edgar Whitehead was that their ability to accept a scheme which would reduce or withdraw the powers vested in the Secretary of State in relation to the Southern Rhodesia Constitution would depend on whether arrangements could be devised and agreed by both Governments which would provide effective alternative safeguards, particularly in respect of discriminatory legislation and land rights, and in respect of amendment of the Constitution."—[OFFICIAL REPORT 9th May, 1960, Vol. 623, c. 31.] The Government's attitude, which I adopt for the purpose of this argument, was that they would not cede their reserve powers unless effective alternative safeguards particularly with regard to discrimination were substituted for those ceded reserve powers;and the question raised in this debate is whether effective adequate alternative safeguards have been found and are to be seen in the proposals. The answer which I would give to that question, and I believe right hon. and hon. Members on this side of the House would give, is an unhesitating negative.

May I make the comment that when these reserve powers are ceded, they are ceded once and for all. No doubt theoretically, but only theoretically, this House and this Parliament could, by legislation at Westminster, overset any Southern Rhodesia Constitution. Theoretically, this Parliament could annul the Statute of Westminster. Everyone knows that the likelihood of that being done is nil, and so it is perfectly clear that when these powers contained in the existing Constitution are ceded, as the Government intend, the Southern Rhodesian people are being told, in effect, that they will never be taken up again by the United Kingdom Government. They are ceded once and for all, just as much as in the case of the Commonwealth countries the Statute of Westminster ceded to them their sovereignty. That is really the situation which we have to face.

What is offered to the people of Southern Rhodesia in place of those powers? There are, substantially, two arrangements. One is the Constitutional Council and the other the Declaration of Rights. I should like to examine each in turn to see whether I can support the proposal I advanced that they do not constitute adequate alternative safeguards.

Let us take the Constitutional Council first. It has been pointed out in debate before—and accepted by Ministers, as it must be, because it is plain on the terms of the proposals that it is the case—that the functions of the Constitutional Council are purely advisory. It has no real compulsive power at all. All that it can do is to report to the Speaker, who must lay a report before the Legislative Assembly if, in its view, a measure appears to be discriminatory. But the Legislative Assembly can quite easily overcome the report's effect either by nevertheless affirming the measure by a two-thirds majority or, six months later, affirming it by a simple majority. With regard to existing legislation on the Statute Book, the Constitutional Council can undoubtedly report on it, but if it does so all that happens is that its report is laid before the Legislative Assembly, which may completely disregard it. So it is purely advisory in character and it cannot even give any effective advice, to the limited extent that its advice is in any event effective, in the case of existing legislation.

The third qualification is that it cannot, for some reason or other, tender any advice with regard to money Bills.

In an earlier debate, that position was put to the Secretary of State. It was pointed out that such a Constitutional Council—which could do no more than advise and whose report it was easy to override and which the Legislature could, by a simple two-thirds majority, override—created little in the way of a safeguard. The Secretary of State's answer was that it was thought undesirable to create a sort of alternative to the courts of law in Southern Rhodesia and, therefore, he accepted that the Constitutional Council should be only advisory. He went on to say, and I cite his own language, because it is important for an evaluation of these safeguards: The real safeguard which we are providing for the observation of human rights is contained not here … not in the Constitutional Council, he meant … but in paragraph 7 … He was speaking of the Report of the Southern Rhodesia Constitutional Conference, Cmnd. 1291, which says any law … passed after the enactment of the new Constitution, which contravened the pro- visions of the Declaration of Rights, should be invalid. I can understand the position the Secretary of State is taking. He is saying that the Constitutional Council is really little more than an opinion-forming agency which will focus opinion on discriminatory measures. But its opinion can be disregarded. It would be useful if it focussed opinion on discriminatory measures and its opinions could be followed by effective action by those discriminated against.

But through the new franchise proposals which we are discussing, only fifteen seats will be anchored to the B roll and, therefore, by a two-thirds majority—which cannot be hindered by the presence of the fifteen African National Democratic seats—the Legislative Assembly can get its way. So the value of the Constitutional Council as an opinion-forming body is a very qualified value.

The Secretary of State's main reliance is on the Declaration of Rights. He is, in effect, saying in justification of these proposals: "The Constitutional Council has a useful function in the way of forming public opinion of a very limited character, but the real lynch pin on which I pin my faith in the value of these new proposals is the Declaration of Rights." The Secretary of State points out that under the law any measure which conflicts with the provisions of the Declaration of Rights will be an invalid measure.

It is obvious that to support such a view of these proposals one must be able to pin one's complete faith in the provisions contained in the Declaration of Rights. If that Declaration was really stringent in its language I would accept that the Secretary of State's answer would go a long distance. But when one examines the Declaration of Rights—the text of which is to be found at Appendix 2 of the proposals in Cmnd. 1400— I put it to the House that it is so qualified in its terms and has such enormous exceptions to its operation that it is rather threadbare as a protection to those in danger of being discriminated against.

The text is to be found on page 39 of Appendix 2 and contains a definition of what is to be considered a discriminatory measure. May I first, having pointed to the provision which says that no written law shall contain any discriminatory provision, invite the House to consider what is not regarded as discriminatory. I hope that I will not cite too much dreary legal language, but the following is not to be regarded as discriminatory: … any law … to the extent that the law in question makes provision … that persons of a particular description, and so on, are … subjected to a condition, restriction or disability to which persons of another such description are not made subject, …" which, having regard to such of the following matters as are relevant in the circumstances of the case, that is to say and then follow four sub-paragraphs describing the matters in question—the subsection then continues which is reasonably justifiable either in the interests of Southern Rhodesia as a whole or in order to secure the protection … of particular people. It becomes important to see what those matters are, for they are as wide as they could be. Subparagraph (a)reads … the nature of the condition, restriction, disability, privilege or advantage as the case may be; Sub-paragraph (b)refers to. .… any special circumstances appertaining to persons of that or any other description; sub-paragraph (c) to .… the stage of social or economic development for the time being reached by the various descriptions of persons affected; and sub-paragraph (d)to .… the state for the time being of the economy of Southern Rhodesia. What does all that come to? It means that if those who seek to support a law which is said to be discriminatory can say, for example, that if one looks at the nature of the restriction and can show that the restriction is reasonably justifiable in the interests of Southern Rhodesia as a whole, the measure is not discriminatory. I put it to the House that that drives a coach and horses right through the anti-discrimination provisions. As I say, if one can say that the interests of Southern Rhodesia require that one should impose this, that or the other restriction on certain groups of people, and if one can show that the type of restriction is reasonably justifiable in the interests of Southern Rhodesia—the Legislature, being the arbiter, in effect, as to what is in the interests of Southern Rhodesia—the measure is not discriminatory according to this definition. That is only a threadbare protection. What remains as discriminatory whittles down to very little indeed. I submit that the idea that this is going to protect the African population of Southern Rhodesia is very nearly illusory. I hope I do not exaggerate my language. I have considered it carefully.

I am aware that there is a proviso to that paragraph that I have just read out, but, without going into the minutiae of it, I think that, on reading it, it becomes apparent that it is only a limited proviso and will not do much to redress the wrong to which I have been pointing.

I have another criticism of it. Who are the people to judge whether, for example, because of the social developments of particular groups of people, it is reasonably justifiable in the interests of Southern Rhodesia that a particular disability should be imposed upon them? They are to be the judges. The right hon. Gentleman claims credit for the fact that the judges have to decide that. I criticise that strongly as meaning that judges are, in effect, being dragged into the sphere of politics. Whether a particular restriction, for example in view of the economic situation in Southern Rhodesia, is in the interests of Southern Rhodesia is a matter of political judgment.

It is utterly undesirable that judges should be expected to form judgments upon matters of that sort. How are they to do it? Are they to have Ministers of the Southern Rhodesian Government coming before them as witnesses to say what, in their opinion, is in the interest of Southern Rhodesia and what sort of restrictions are justifiable as measured by the interests of Southern Rhodesia, or are they to form an opinion upon that matter drawing upon their own experience and bringing their own personal judgment into the matter?

I submit that it is utterly undesirable that the judiciary should be brought into the political arena and have placed upon them the function of forming what really must be in many cases purely political judgments. I am aware that in our own judicial system sometimes judges have to decide by reference to what, in their view, is the public interest, but those cases are limited in number and it has been said on many occasions that it is unfair to put that sort of burden upon judges.

My second criticism of the Declaration of Rights is that it does not apply to existing legislation, as the Secretary of State has said. It does not apply, for example, to the Land Apportionment Act, to the Vagrancy Act, to the Detention Order, or to the Law and Order Maintenance Act. All those are outside its scope. They can go on being used, so one apprehends, despite all the protection which has been embodied in the scope of these proposals.

I want to make a further criticism which I really put in the form of a question with regard to this Declaration of Rights. The wording is: ߪ a provision shall be regarded as discriminatory if by or as an inevitable consequence of that provision persons of a particular description by race, tribe, colour or creed are prejudiced by being subjected to a disability.

I took the opportunity of acquainting the Minister that I proposed to ask the question which I shall now put and which I hoped would be answered because it seemed to be one of importance. I thought it was a matter of importance that no misleading impressions should go out from this House, and the hon. Gentleman undertook to look at the point.

The point that I raise is this. Does that mean that no Measure is discriminatory in the sense of this definition unless it actually names a particular race or tribe—that it is not discriminatory, for example, unless it says "Africans shall not be allowed to go into a cinema", or whatever the prohibtion may be? Is it necessary that the word "Africans" shall be used. The wording is persons of a particular description by race, tribe, colour or creed. If that is what it means, it is really extremely limited in effect.

If we look at the various Acts to which I referred, the Vagrancy Act, for example, so far as I am aware, that does not mention Africans. Even if that were an enactment passed in the future, it would not be discriminatory within the meaning of this definition. I hope that we shall have an answer to that point.

I suggest that the effect of the definition, if it is to have any real force, ought to be to make discriminatory any act which has the result, whether particular people are named by race or not, of affecting them adversely and unfairly in comparison with persons of other races. That is the way in which a number of these anti-discrimination provisions are worded, for example in the Constitution of Ceylon.

The Joint Under-Secretary justified the text of this Declaration of Rights by saying that it was broadly based on the text of the Sierra Leone and the Nigerian Constitutions. I have compared those two, and, without wearying the House by going through a detailed comparison, I would say that they do not conform, as I read them, to the text which has been chosen for the purpose of this provision. I ask the Government, what do they mean? I hope that they mean this Measure to be understood in the more extended sense and not the very limited and not very useful sense. If they mean it to be understood in the more extensive sense, I press upon them that language should be selected which makes it abundantly plain that it is the extended sense that is intended, namely, that a Measure is discriminatory whether or not it names a particular race or creed, if, in fact, its result is to subject a race or creed to some disability to which others are not subjected.

I pass to the question of the franchise. I agree that it is much better that there should be 15 national democratic seats than none;15 is 15 more than nil, and to that extent it is an improvement. I quite recognise that the entrenched provisions, as they are called, of this Constitution cannot be amended except, as the Minister has said, by a two-thirds majority and a referendum. But many of the provisions of this Constitution are not entrenched. The entrenched ones are only a small minority.

Under the terms of the new constitutional proposal, with the A and the B rolls with the 15 African seats as they no doubt will be, the Constitution could be amended easily by a two-thirds majority being obtained despite a full complement of 15 African votes in the opposite direction. The very fact that there is a B roll created, which presumably involves that if the B roll were universal in scope it would nearly always produce African members, is surely a sufficient condemnation of staying there. That is a situation which cannot be allowed to go on. There must be further progress as quickly as possible to something in the nature of universal suffrage. In a population of about 230,000 non-Africans as against nearly 3 million Africans, 15 is, in the long run, at any rate, not a proper proportion to 50 non-African seats.

I should like to put this question. If these proposals are adopted, if the reserve powers which the Government still possess are relinquished and if the matter is really left to the 50 members in the Legislature of Southern Rhodesia, whilst I accept and do not wish to run away from the fact that there has been substantial improvement in various directions in Southern Rhodesia in the way of a more equitable social system, nevertheless, if the matter is left in that way is there much prospect of the franchise being enlarged?

I should like to know what Ministers think. It may be that they will say they think there is a prospect, in which case I shall rejoice to hear it and wait to see if their anticipations turn out to be justified or not. But I very much fear there is little prospect indeed and that the result of the Government of the United Kingdom releasing their reserve powers, and by implication releasing for ever the responsibilities which go with the possession of those reserve powers, will simply mean that the pace of progress in Southern Rhodesia will be slowed down and the exasperation of the African population will be built up. I hope that I am wrong about that, but it seems to me that, although the Minister has by patient endeavour managed to obtain this degree of concession, the concession does not go anything like far enough.

Concentrating my argument upon those two aspects of the proposals, the anti-discrimination provisions and the franchise provisions, I think that it can be said, without looking at the rest, that it is perfectly apparent that the constitutional proposals now before the House are inadequate and are not a proper substitute for the present reserved powers which the Government possess.

7.30 p.m.

Sir Lionel Heald (Chertsey)

It is tempting to reply to the right hon. and learned Member for Newport (Sir F. Soskice) in detail and at length, but the time available for this debate is limited and I know that several of my hon. Friends and hon. Members opposite wish to speak. I have in mind also that this is really a replay. We had this argument out on 22nd June and the two points made then were the same points which have been made today, first, that the safeguards are insufficient, and, second, that the franchise is insufficient, and those points were rejected on that occasion by the House. The matter was gone into. I have no doubt that my right hon. Friend will reply in due course, as he has been asked to do by the right hon. and learned Gentleman, and it would not be right for me to duplicate the discussion. I should not like to say whether the arguments have been put better today than they were last time. The fact is that they were put last time and we went into them.

On the matter of the safeguards, it was explained on the last occasion that we were dealing here not with a Protectorate but with a virtually self-governing Colony which has been such since 1923 and, in those circumstances, the use of reserved powers is almost unheard of. The right hon. and learned Gentleman himself torpedoed somewhat his own argument about it when he said, "Theoretically, one can repeal the Statute of Westminster, or act contrary to it, but, of course, one never does". The same applies to the reserved powers, and, as was said on the previous occasion, there are to be very much better safeguards in the Council and in the Bill of Rights than are provided by the remnants of the reserved powers. I shall pursue that question no further, and I certainly shall not spend time upon the franchise.

It ought to be said that very little justice has been done by the right hon. and learned Gentleman to Southern Rhodesia. The present position ought to be pointed out. The right hon. and learned Gentleman referred to the Monckton Commission, of which I was a member, and he referred to our attitude towards discrimination. We strongly criticised Southern Rhodesia, but it is right and proper now to recognise what has followed the criticism— I do not say that it has been the result of it—and point out that the position today is strikingly different. No one would think, after listening to the right hon. and learned Gentleman, who paid no more than a few moments' lip-service to it, that there has been a considerable change.

The Monckton Commission in its Report, Chapter 11, paragraph 221, said: … the maintenance of the colour bar and the prevalence of discrimination in Southern Rhodesia has turned the Africans of the Northern territories, and many of those within Southern Rhodesia itself, against the Europeans who control it. It follows that no new form of association is likely to succeed unless Southern Rhodesia is willing to make drastic t changes in its racial policies. Later, the Commission said: We strongly urge, therefore, that, if it is the genuine desire of the Europeans of Southern Rhodesia to preserve an association with their neighbours in the north, they should remove as quickly as possible from their laws and practices all instances of unfair racial discrimination. The main matters on which we insisted in the following paragraphs were the Pass laws, the public services and the Southern Rhodesia Land Apportionment Act. We suggested, also, albeit with due care because of the special position of Southern Rhodesia, that there should be a Bill of Rights and a Council, preferably in each territory.

What has actually happened in the last year? It is right that we, and certainly someone who was associated with that criticism in the Monckton Report, should be fair and accurate about the facts. First, the Indaba took place, the so-called national convention, at which the chiefs and representatives of the whole population met and arrived at some remarkable results. Sir Edgar Whitehead said on that occasion that what had happened that day would have been inconceivable three years before. As from a date earlier this year, all posts in the Civil Service have been open to Africans. The Pass Laws, to which I have just referred, have virtually been abolished. The Land Apportionment Act has been amended in a very important particular, allowing Africans to hold land in the European townships. The cinema laws have been very largely repealed and many cinemas are now open to Africans.

There was, of course, a great change in the whole atmosphere after the referendum because the strike organised by the N.P.D. did not come to anything. There has been a general improvement in the atmosphere in every direction.

On 5th October, there was the Annual Congress of the Southern Rhodesia United Federal Party. I stress that it was the Southern Rhodesia United Federal Party because the attitude of the U.F.P. in another place is rather different. It is interesting to note that, in a newspaper which, I am sure, will be accepted by the right hon. and learned Gentleman as a reliable authority, the Guardian,it was reported that there were 103 African delegates at this congress representing 25 per cent. of the whole, and they were largely instrumental in getting several very progressive resolutions adopted. The African delegates said that the highest priority should be given to the repeal of the Land Apportionment Act and its replacement by legislation better designed to cope with present conditions. That is only one example.

Sir Edgar Whitehead in his speech at the end of the Congress said that something of that kind was essential and that Southern Rhodesia's present methods were much too slow. The idea of white supremacy was, he said, as dead as the dodo, and he added, according to the report in the Guardian, If you want someone to continue to operate that policy, you will have to get another Prime Minister". We can go back to things which happened a year or two years ago, but, surely, we ought to appreciate what has happened when we find Sir Edgar Whitehead, in particular, talking in that way and his party behaving in that way. I should have thought that we ought to approach the matter in a spirit rather different from that adopted by the right hon. and learned Gentleman, who—I say it in no unfriendly way, as I am sure he knows—approached it from a rather legal point of view.

We have spent half a day celebrating the fact that we are able to remove our apron strings from a country and to let it be independent and, we hope, a part of the Commonwealth. As I have said, Southern Rhodesia's virtual independence dates from 1923, but, of course, its existence goes much further back than that. Should not we encourage this Colony to have a constitution of its own to work?

As to the question of the reserved powers, can it really be healthy to have the opportunity of having wrangles here all the time about what should be done there if there is machinery, and, as I see it, much more effective machinery, that can be used at the other end?

I emphasise that we have some evidence that there is the possibility of building a multi-racial State in Southern Rhodesia. There is nowhere else at present where such a thing is showing any chance of coming to fruition. If the attitude which has been adopted today continues to be adopted, it is very unlikely that there ever will be. I therefore suggest that we should give the Constitution a fair chance. No good is done by saying that it is too late, that this is a death bed repentance, and so on. Let us try to look forward. On a day when we are discussing the future of the Commonwealth, let us continue to be logical throughout.

7.42 p.m.

Mr. Donald Wade (Huddersfield, West)

I am as anxious as the right hon. and learned Member for Chertsey (Sir L. Heald) that a genuine multi-racial society shall evolve in Southern Rhodesia. This Bill is the last stage in a process which is intended to provide for the grant of a new Constitution in that territory. It will involve the giving up of reserved powers. I think that it is clear that it is the last stage, since we have already been told that the Order in Council under Clause 1 (4) will not be debatable.

Although these reserved powers have not been exercised for many years, I think that we must examine very carefully legislation which is designed to abandon them. As long as they exist, we here in the British Parliament have the right to be consulted on constitutional changes. We have a say in future constitutional proposals. That is the signifi- cance of the existence of these reserved powers. I said that we had the "right" to be consulted. Perhaps it would have been more appropriate if I had used the word "duty", because surely the principle of trusteeship still applies to this territory, as it does to Nyasaland. Certainly, the Africans do not see any reason for making a distinction between Northern Rhodesia, Nyasaland and Southern Rhodesia. It is in the light of that, and recognising the duty which falls on us that we must consider the new Constitution. I hope that in considering it I shall not be too legalistic.

If the proposed Constitution were just a step towards greater equality of treatment as between the whites and the blacks in Southern Rhodesia, I would say that these proposals have much to commend them. They are a step in the right direction, and I do not think that I can be fairer than that. But is it just a first stage? Are we satisfied that the development of this Constitution will continue towards a genuine multi-racial society?

I think that we must consider the importance of the number of seats in the Legislature. The Africans will, in effect, be entitled to 15 out of 65 seats. That means that we are handing over our share in the responsibility for the future constitutional development—we are giving up our reserve powers—at a time when the Africans will have less than two-thirds of the seats. There is, therefore, no assurance that progress will take place on the lines that we would wish to see.

I do not propose to detain the House with a number of quotations, but I will, if I may, burden the House with one. It is from the Africa Digest of October, 1961. It refers to some observations of Mr. Garfield Todd. It states: Writing in the Liberal News of 26th July, Mr. Garfield Todd asked: "What yardstick does Britain use when determining who is ready for self-government? In Central Africa today almost all Blacks and at least some Whites are frustrated, despairing or dangerously angry because of what Britain is doing, or is permitting to be done in our part of Africa. Why has Britain done this thing, is a question I constantly hear from African leaders and African followers. Why does she act in one way in Tanganyika and in a different manner in the Rhodesias?' A little later Mr. Todd says: They"— that is, the Africans— point to Sir Edgar Whitehead's assurance to the Whites that this Constitution"— that is, the Constitution we are discussing— will be the final concession to Africans and that the White Government will never give a franchise to Africans in Southern Rhodesia comparable to the one already granted in Nyasaland, where over 100,000 Africans will soon go to the polls. I should like to know whether we can be told that that reported speech by Sir Edgar Whitehead is correct. If we cannot have such an assurance, are we right in giving up these reserve powers at a time when the African representation is to be limited to 15 seats? It is clear that the Africans will be unable by themselves to prevent the Assembly from over-riding objections by the Constitutional Council to discriminatory laws. That is the fundamental objection which we are entitled, and I think bound, to debate this evening.

That is the background to the points that I wish to raise about the proposed constitutional changes. I should like to refer to the detailed proposals in Command 1400. I hope that I shall not be thought to be too legalistic. First, I turn to Chapter VII headed "Amendment of the Constitution", which begins on page 24. In Clause 77 there are the specially entrenched provisions, which include the entrenched clauses relating to the Declaration of Rights, Appeals to the Privy Council, the Constitutional Council, the Judiciary …. Clause 75 (3) reads: Any Constitutional Bill which repeals or amends the specially entrenched sections of the Constitution … will require not only the two-thirds vote referred to above, but will either have to be approved in a referendum by a majority of those voting in each of the four principal racial groups in the Colony, or the Bill will have to be reserved by the Governor for the Queen's Assent. The Clause then refers to this latter procedure. It concludes by stating that Such an Address may be moved only by a Minister after signification to the Assembly that Her Majesty has consented to the moving thereof. There appears to be this alternative procedure. Who will advise Her Majesty in those circumstances? Presumably, it will not be the British Prime Minister. I assume that it will be the Prime Minister of the Southern Rhodesian Government and that, therefore, this assent by the Queen will not be a matter in which the British Government are in any way concerned. That is my first question.

I am wholly in favour of the idea of a Declaration of Rights. I would like to see a Declaration of Human Rights incorporated in every Constitution throughout the Commonwealth. The general idea is one that should be welcome. I have, however, one or two queries to raise. On page 41 of the White Paper, Clause 14 states that Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of any of the provisions of sections 1 to 12 of this Declaration— (a)if the law in question was in force immediately before the appointed day and has continued in force at all times since that day. I do not need to go over the ground which has already been covered. In effect, that means that discriminatory laws which are in existence today will not be affected by this Declaration of Rights. We are bound to express concern about that. I quite understand (hat it might be impracticable to remove at once all laws that may be deemed to be discriminatory, but in considering the value of this Declaration of Rights we must recognise that it in no way overrules existing laws.

In Clause 11 of the Declaration of Rights, we have the problem of interpreting the words, at the end of subsection (2), wholly or mainly attributable to the description by race, tribe, colour or creed of the persons concerned. If that means that a provision is discriminatory only if it refers specifically to race, tribe, colour or creed, obviously it will not cover all legislation of a discriminatory nature. For example, financial legislation and taxation may, in effect, be discriminatory.

That brings me to subsection (3, a)of subsection 11, which refers directly to money Bills. The subsection states that Subsection (1) of this section shall not apply to any law to the extent that it relates to any of the following matters". The first is: any matter such as is mentioned in any of paragraphs (a)to (e)of the definition of a Money Bill". I do not want to suggest that this loophole will be used deliberately to maintain discriminatory legislation, but if, for example, a poll tax were to be imposed, it would be extremely discriminatory and would be outside the ambit of the words mainly attributable to the description by race, tribe, colour or creed". On the subject of money Bills, when one turns to the functions of the Constitutional Council, on pages 16 and 17 of the White Paper, we see that money Bills will be exempted from submission to the Constitutional Council. First, therefore, the Council is only advisory and, secondly, it will not be entitled to consider money Bills, which, alas, could well be discriminatory. We are bound, therefore, to express some concern.

Things may not work out as I have suggested—I hope not—but it is our duty to consider whether the safeguards are adequate. I remember very well the debates that took place when the Bill authorising the creation of the Central African Federation was discussed in the House. Lord Chandos, as he now is, who was then Colonial Secretary, showed irritation at the way in which hon. Members on this side doubted the wisdom of the Government in forcing that Federation through against the wishes of the African people and expressed fears about the future.

I do not know what he was thinking, but at one time Lord Chandos appeared to me to be saying to himself, "How stupid these people are in not accepting the word of the Government."As it has proved, however, many of the doubts which we then expressed were well founded and many of our fears were justified. It is with that recollection of past experience, as well as concern for the future of Southern Rhodesia, that I feel unable to support the Bill.

7.58 p.m.

Mr. Stephen Hastings (Mid-Bedfordshire)

I am glad of the chance to say a few brief words in this debate, first because I have had the good fortune to spend some weeks during the Recess in the Federation and in Southern Rhodesia, and secondly, because I was out there as a child—indeed, I was nearly born a Southern Rhodesian—and my father was a Member of Parliament for Lomagundi in Southern Rhodesia. So that I have been brought up to some extent in a Rhodesian atmosphere and have taken a great interest in the progress of the country.

I do not accuse the hon. Member for Huddersfield, West (Mr. Wade) of being legalistic, but I think that he spoke of the letter of the Constitution rather than of the siprit. I wish briefly to deal with the spirit of it. I am no constitutional lawyer, but in my short time out there recently I got some feeling of the spirit that is behind non-racialism.

The success of the Constitution clearly depends on race relations, which, to my mind, means understanding first and foremost. To take up two points made very ably by my right hon. and learned Friend the Member for Chertsey (Sir L. Heald), there are clear proofs of the good will and of the efforts that are being made by the United Federal Party, in particular, and by the Europeans in Southern Rhodesia—the white Southern Rhodesians—to make non-racialism a living thing.

The two real achievements in this line recently have been, first, the referendum which was won after a considerable electoral struggle. I spoke recently to a number of people who are involved out there. A good many of them were bitterly disappointed at the reception their victory, as they believed it to be, was given in this country. There was a certain amount of sneering at the result as being less than it might have been. The right hon. and learned Member for Newport (Sir F. Soskice) mentioned figures of two to one, and this is true. Nevertheless, it was a great effort and a great beginning, and it was for them a victory, and we on our side should acknowledge their achievement.

The second real achievement is the United Federal Party Congress, which took place only a few weeks ago. at which they took this, for them, tremendous step forward of resolving almost unanimously and with a one-third African representation at the Congress that if they are returned at the next election, they will do away with all forms of segregation.

That is what they must do, and they realise it. If, however, we wish to help, what we need to do is to understand the difficulties which those who fee! in this way are up against in southern Rhodesia. It is only fair to reflect that the pioneer column Chat first arrived came up from South Africa, from the Rand, that Southern Rhodesia has always looked to South Africa and that one-third of the European population there are of Afrikaner extraction, and there is therefore, naturally enough, a pull in that direction.

It takes long for people who are accustomed to attitudes which everyone in this House condemns—'the racialist attitudes in South Africa—to alter their minds. A considerable effort has to be put in to bring this about. This has been a tradition in Southern Rhodesia and until comparatively recently it has changed slowly. In recent years, however, the change has accelerated. Southern Rhodesians have completely altered their South African ideas about racialism and, this is something which we should recognise in the results of the U.F.P. Congress.

I should like to say a word about the attitude of mind also of the Africans, because this debate turns to some extent on speed—the speed of constitutional advance.

We should perhaps spend a little more time than we do in trying to understand what precisely is the attitude of mind of the African. It is not easy to interpret. I had the opportunity of talking to a number of Africans on this subject, and Europeans as well, who have made a close study of it. I hope that my African friends will not condemn me for making this little psychological exercise. It is very relevant.

For three hundred centuries the African in Central Africa has slumbered in the folds of animism and spiritism. His physical lot most certainly was a miserable one and has improved vastly since the arrival of the European. But he had standards. They were perfectly clear. He had one great standby and this was what one might describe as a compulsory conformism in the tribe which served to condemn ambition and penalise personal success as an evil thing. This was a great protection to him. Since the arrival of the Europeans, there has been imposed on this a thrusting belief in ambition, couched in varying degrees and versions of Christianity. This is a tremendous psychological change and something very difficult for him to reconcile—only seventy years since we arrived and 300 centuries before.

Surely if we are to help him we must try to understand what he must be going through in trying to readjust and accept in its entirety the Western ethic which is completely opposed to what he believed before. The contradiction which this imposes on him may well cause— and this is entirely understandable—the African to put ambition before Christianity and politics before education.

It is a fact today—and this I believe to be true, for I was told it on very good authority by a number of people—that in his bewilderment, and many of the ordinary Africans in Southern Rhodesia are bewildered at this moment, he is turning back to the age-old spiritism he held to before.

I am putting this before the House in order to stress the need for understanding between African and European. This is another vital reason for it.

I spoke to a number of people, European and African, recently on the varying degrees and interpretations of non-racialism that are debated. I had a tremendously strong impression of the enthusiasm that there is behind this movement on both sides. Perhaps it is still a tender plant. Certainly it is still in its early days, but there is no question about the genuine feeling among those who believe in it and who are determined to build a non-racial State.

Perhaps it is a happy thing that this concept should come to be along the Zambezi River, along what might become, if things went wrong, the black-white frontier in Africa. I have a horrible spectre in my mind of what could result from the crystallisation of that position, and the only way to avoid it is through the success of non-racialism.

This Constitution represents an advance. Do not let us make it more difficult in this House, in this debate or in the country as a whole by heaping criticism upon it. Let us rather try to understand the difficulties that still exist and thus help those who very genuinely believe in it and believe that they can build a future for Southern Rhodesia as fine as that for any other country in Africa.

8.7 p.m.

Mr. Elwyn Jones (West Ham, South)

The House will have listened with very great interest to the speech of the hon. Member for Mid-Bedfordshire (Mr. Hastings). We on this side of the House certainly are not opposed to the basic ideas which he has expressed of wishing for a speeding up of the creation of a non-racial State. What is troubling us is that the pace of advancement is so slow, and has been so slow, that the prospects of non-racialism coming into existence are being nipped in the bud.

What has led us to oppose the present Measure is that we feel that so little recognition is given in the proposed measures to the insurgent demand of Africans for advancement both social and political that they are likely to and in danger of rejecting these proposals wholeheartedly because they do not go anywhere nearly far enough. We hope that the Africans will give this Measure a trial run, if I may put it in that way, but we recognise that the proposals themselves that we are considering are based, despite some advancement, on a formula which leaves effective power and privilege still in the hands of Europeans. It is because these measures do that that we are opposing the Bill tonight.

There has been some criticism of my right hon. and learned Friend the Member for Newport (Sir F. Soskice) for the excessive legalism of his speech. I confess that I find that a strange criticism, because, after all, this is a very important occasion for the House of Commons, for the people of this country, and for the people of Southern Rhodesia. For we are, by these measures, to abdicate our power of control over what goes on in Southern Rhodesia.

This Bill introduces a curious constitutional hybrid. If these measures take effect Southern Rhodesia will be a Colony which will be more than a Colony, but something less than an independent sovereign State. We, the British people, the British Government, will still be answerable internationally for what goes on in Southern Rhodesia;we shall be called to account before, for instance, the bar of the United Nations if things take a course in Southern Rhodesia which, for example, may do violence to the Universal Declaration of Human Rights.

We shall remain answerable before the bar of world opinion for what goes on in Southern Rhodesia after these measures are introduced, if they are to be introduced. Therefore, it is a vital duty for us to see that the Government who are to have this power, which may well result in our being placed in the international pillory, are likely, by reason of their composition, to be nondiscriminatory and fair, and we have a duty to see that the basic rights of the African people are safeguarded before we say goodbye to powers which exist, which could have been exercised in the past, and whose very existence did, we think, have a restraining effect.

In connection with the international implications of the proposed measures, there are one or two matters about which I should like to ask for information from the Minister. Paragraph 36 (1) of the Detailed Provisions deals with two classes of laws in respect of which there will still remain in the United Kingdom a power of disallowance. The first is this. There will be power of disallowance where the Act passed is inconsistent with any international obligations imposed on the Queen in relation to Southern Rhodesia". Does that mean that there will be power of disallowance where any Southern Rhodesian Act which may be passed may be inconsistent not only with present international obligations resting upon Her Majesty's Government, but any future international obligations which the Government may accept and undertake?

Suppose, for instance, that the Government in this country entered into an international convention and ratified such convention to bring into force and give effect to the Universal Declaration of Human Rights. There are many of us who have been pressing for this kind of gesture to be made by this Government. Suppose we became a party to such a convention as that. Can we bind Southern Rhodesia by such a measure as that?

Again, this is not a matter merely of theoretical importance. It is a matter of practical moment at present because of the obligations of the British Government under the Charter of the United Nations. Article 25 of the Charter states that the members of the United Nations agree to accept and carry out a decision of the Security Council in accordance with the present Charter. There is a duty under the Charter to lend military aid to carry out decisions of the Security Council.

It may well be—I am not sure that such a resolution does not already exist —that the Security Council might, for instance, resolve that steps should be taken to stop facilities for foreign mercenaries entering Katanga. Does the passing of this proposed legislation mean that the British Government's commitment to such obligations would extend to Southern Rhodesia, or could Southern Rhodesia simply ignore them and act as she thought fit? If there were disregard of such an international obligation of that kind entered into by the British Government, what powers would remain in the British Government to take steps to carry out their international obligations?

Quite apart from that matter, which is, I think, of some political importance to this country, I should like to echo the serious criticisms which have been made by my right hon. and learned Friend about the human rights provision of this Constitution. I confess that one of the feelings which I have had in the debates which we have had on the Southern Rhodesian Constitution has been a feeling of futility, because although the House of Commons is parting with very important powers we have not the least power to amend any details of the proposed Constitution, and, as my right hon. and learned Friend has said, we are not sure even now what the precise and detailed provisions of the Constitution will be.

So we are going through a somewhat hallow Parliamentary drill. We are uttering words, and, alas, words of criticism, which have been expressed on this side of the House, which, as yet, have resulted in no practical steps by way of remedy of anything which is proposed. However, as I understand from the speech of the Joint Under-Secretary of State, there is still room for some adjustment, some alteration, in the Constitution—he has placed it in terms of detail, but it may well be that a detailed amendment may make all the difference —so that one is encouraged to continue these criticisms in the hope that at the eleventh hour there may be a strengthening of these human rights clauses, so that we may feel sure that we are receiving an adequate quid pro quofor the surrender of the powers of the British House of Commons.

Mr. Braine

I would not wish the hon. and learned Gentleman to misunderstand what I said. I went out of my way to say that the Declaration of Rights in regard to the new Constitution will be promulgated in its entirety. He will know that for purposes of legal precision a few drafting amendments might be necessary, but I assure him—I would like to remove all doubt from his mind—that the Declaration of Rights will be incorporated in the new Constitution in its entirety. The House is, therefore, well aware of what it is discussing. It has had the White Paper before it.

Mr. Elwyn Jones

I understand that the broad lines and the major aspects of the declaration will be embodied in the proposed Southern Rhodesian legislation—

Mr. Braine

It will be embodied in the Order in Council.

Mr. Elwyn Jones

It will be embodied in the Order in Council, but whether there will be consultation in the drafting of the terms of the Order in Council between the Government and the Southern Rhodesian Government's representatives I do not know. I would hope there would be, and I would hope that, when the question of drafting amendments is considered, the serious criticisms made by my right hon. and learned Friend will be considered, because, as he pointed out, the provision in paragraph 11 (4) of the Declaration of Rights really drives a coach and four throughout all the safeguarding words of paragraph 11 (1): No written law shall contain any discriminatory provision.

Mr. S. Silverman

Can my hon. and learned Friend enlighten me on one point, which I do not understand? I am looking at the paragraph which, on first reading, appears to me to mean that the Order in Council which contains the provisions that have been discussed in the last few minutes of my hon. and learned Friend's speech can be subsequently changed by another Order in Council, which, although it has to be placed before the House of Commons, cannot in any way be dealt with by the House. Is that right or wrong?

Mr. Elwyn Jones

I think that is what was indicated by the Under Secretary when he opened the debate and I fear that that is the position. Perhaps my hon. Friend, with his customary genius for probing, will return to the matter when the Secretary of State concludes the debate.

Mr. Silverman

It will be too late. then.

Mr. Elwyn Jones

One never knows. At any rate, let us see whether something can be done between now and the embodying of the Declaration in the Order in Council.

As my right hon. and learned Friend the Member for Newport said, the provisions of this Declaration contain reservations which I confess I have not been able to find paralleled in either the Nigerian Declaration of Human Rights or the Sierra Leone Declaration of Human Rights. When we are criticised for legalism in this matter, these are legal rights which we are going to tell the Africans are an adequate safeguard for them and we shall be guilty of humbug if we put a mass of words in a Declaration which have no effective results at all.

To return to Section 11, Subsection (1) says: No written law shall contain any discriminatory provision. But subsection (4) adds that that subsection shall not apply to any law to the extent that it relates to any of the following matters, that is to say …. to the extent that it makes provision whereby persons of a particular description are subjected to any condition, restriction or disability which … having regard to such of the following matters as are relevant in the circumstances of the case … is reasonably justifiable either in the interests of Southern Rhodesia as a whole … One of the grounds which apparently justify the continuance or introduction of restrictions or disabilities, the "matters that are deemed to be relevant", are

  1. (a)"the nature of the … restriction …."
  2. (b)"any special circumstances appertaining to persons of that or any other description;"
  3. (c)"the stage of social or economic development for the time being reached by the various descriptions of persons affected …"
  4. (d)"the state for the time being of the economy of Southern Rhodesia".
All this seems to say that if a section of the Southern Rhodesia population have reached a lower stage of social or economic development than others it would be proper to exercise against them restrictions or disabilities. I cannot imagine anything giving a clearer scope for discrimination than that.

However, there is a proviso, and it may be that the Minister can make more out of it than I can. I confess that it gives me no reassurance. It is in the terms: Provided that this subsection shall not apply to the extent that the law in question results in the laws with respect to the matter in question affording greater difference of treatment of different descriptions of persons than immediately before the date of the making of the law in question. As I understand it, it simply means that one cannot discriminate more than one is discriminating already, which does not seem to me an effective measure of antidiscrimination. I hope that we shall have much greater reassurance about that.

I confess that I find far more reassuring the kind of words one finds in other Constitutions, like that of Ceylon, to which my right hon. and learned Friend the Member for Newport has already referred, namely, that these Declarations of Rights should quite plainly forbid discriminatory legislation which should be defined as legislation which has the result of discriminating against the different races in the population. What troubles me is that, as far as I can judge the matter, not only does this Declaration of Rights not deal with the Measures on the Southern Rhodesian Statute Book at the moment, which we on this side of the House regard as repressive, indeed positively Draconian as I said earlier, and which were introduced only in the course of 1960, but that if this Declaration of Rights had been in existence then I doubt whether those Draconian Measures would have been caught by its provisions.

Although much has been said about the improved outlook in Southern Rhodesia, which we readily recognise, nevertheless it was in 1960 that there were passed two Measures, the Vagrancy Act, on the one hand, and the Law and Order (Maintenance) Act on the other, which seemed to us on this side of the House to be a most serious defiance of what ought to be embodied in any Charter of Human Rights. For instance, the Vagrancy Act defines a vagrant in Section 2 as: any person who is unable to show that he is living by honest means and has a settled way of honest living. I resist the temptation of indicating what difficulties some hon. Members might confront under that definition.

Mr. Charles Pannell (Leeds, West)

That applies only to Southern Rhodesia, not here.

Mr. Elwyn Jones

One finds a reference similarly to vagrants in the Declaration of Rights itself, which declares in Section 2 (2): No law shall authorise any person to be deprived of his liberty save in the following cases, that is to say … if he is, or is reasonably suspected to be … addicted to … alcohol, or a vagrant … This is a confusing provision in so far as some apparently honest citizens normally regarded as worthy of freedom might be affected.

The Vagrancy Act, having defined a vagrant in that broad way, goes on, in Section 3, to say: A police officer may arrest without warrant any person who appears to be a vagrant and shall take such person before a magistrate within forty-eight hours of his arrest. That person can be held for three years and sent out to work in the fields or mines. I doubt whether a Declaration of Rights would hit that Section;I fear that it would not.

Even more disturbing is the notorious Law and Order (Maintenance) Act, which led the Chief Justice of Southern Rhodesia to resign. Not long ago, in the Library, I read with astonishment Section 51 of that Act. I found it difficult to believe when I read it. It states: Whenever any person is convicted by a court of an offence for which a minimum sentence is prescribed by this Act and such sentence is imposed by that court, the court shall submit a report on the proceedings in the case to the Minister for transmission to the Governor. That, of course, is an indication of the freedom and independence of the bench;the bench is required to explain why it gave the minimum sentence—to show cause;a most remarkable piece of legislation.

When one reads that Act and sees the fierce penalties passed for offences defined in the most broad, most dangerously broad terms, and one sees that a declaration of human rights which makes it improbable either that such legislation will be reviewed or, what is more serious, improbable that it will be interfered with, it is not surprising that we feel anxiety. It is true that, theoretically, the Constitutional Council can review legislation already in existence, but the Council's powers are purely advisory;it has no veto power at all.

I make no apology for venturing some lawyers' observations on this matter. We have a duty, as a House of Commons, not to part with reserved powers which were retained for this House for the very reason that in this territory of Southern Rhodesia there was this disparity in position and power between the European and the non-European. I hope that even at this late hour the Government may, by whatever means may still be open to them, reopen this matter, have a second thought upon it, and really give the Africans some hope for faith in the future. That, I fear, is what they lack at the moment.

If, for instance, there could be some indication that the Africans would have good cause to hope for further constitutional advancement it would be a help, but there have been quotations from one of the leaders of the Government party which certainly give one no confidence that there is such a hope. Is this to be a once-for-all constitutional change? Is there really, in practice, reason to hope that this will be the beginning of the road to a real representative democracy in Southern Rhodesia? This is the critical question.

8.32 p.m.

Mr. Raymond Gower (Barry)

Running through the speeches of the hon. Member for Huddersfield, West (Mr. Wade) and the right hon. and learned Member for Newport (Sir F. Soskice)— and, in some respects, through the speech of the hon. and learned Member for West Ham, South (Mr. Elwyn Jones)—has been an impression that the historical development of this territory has been comparable to that of other territories in Africa. Indeed, the hon. Member for Huddersfield, West went so far as to ask why this sort of thing should happen here when something else has happened in Nyasaland. I hope that I am not misinterpreting what he said. If I am, I will gladly give way to him.

Mr. Wade

I said that the general principle of trusteeship must surely apply to Southern Rhodesia as well as to Nyasaland and Northern Rhodesia, and that the Africans found it very difficult to understand why a distinction should be made in the treatment of Africans in the Northern Territories and in Southern Rhodesia.

Mr. Gower

I accept that as another point the hon. Gentleman made, but his first case was that the development of this territory from its earliest inception as a settled community has been comparable to the development of other territories. That has not been the case. We may regret that Rhodesia was originally developed by a company rather than settled as a Colony, but it is a fact. We may regret the fact, or may wish that it were otherwise, that Southern Rhodesia in 1923 had a constitution which rapidly made it a sort of self-governing Colony. We may not be pleased about that, but it is a fact that we must recognise. I would have thought that the hon. Member for Huddersfield, West and also—and I say this with diffidence—the right hon. and learned Member for Newport were stretching the comparison very far indeed.

The other point made by the hon. Member for Huddersfield, West was that in Southern Rhodesia we are in the same position, or in a similar position, as trustees in these other territories. Of course we would be if we enjoyed the same power in Southern Rhodesia. But the fact is that, since 1923, most of the powers of trustees have been carried out in Southern Rhodesia not by us but by the Government of Southern Rhodesia.

Then we come to the legal position, which has been pressed and rightly examined by successive speakers from the benches opposite. The last three who spoke from there are lawyers. They have rightly looked at the legal position. That position, if one examines the Act of 1923, would establish greater control here than is the fact. But in our law— and I am sure that the hon. and learned Member for West Ham, South will accept this—both in the relationship of constituent territories in the Commonwealth and internally in this country, the conventions of the Constitution are sometimes as important as statutory law. In the light of these conventions it is inconceivable—and I believe that that was the word used by the right hon. and learned Member for Newport—that we should, in practice, control these matters in Southern Rhodesia today if we made no change.

The alternative to the Bill is the old position — the position Which has obtained for so many years, under which this territory has been virtually and for every practical purpose a self-governing Colony. It is not a true alternative, as has been represented. I say with respect to the right hon. and learned Gentleman that the alternative to the Government's proposals, or to better proposals, cannot be obtained from the old position. A very serious position would ensue if the House accepted the Amendment. The future of the Africans in the territory would be worsened. We should have virtually no say and there would be virtually no safeguards.

Whatever the inadequacies we may discover or descry in these proposals, the Opposition's alternative would be far weaker, because we should be left with the position where we were dealing with a territory over which we had no control at all except through a word in an old statute which has not been practised for two generations.

Mr. Richard Marsh (Greenwich)

The hon. Member's reasoning on this point is rather strange. Is he suggesting that if one does not use reserve powers for a period of time it becomes a constitutional convention that reserve powers no longer exist?

Mr. Gower

Yes. I am afraid that is the case.

Hon. Members


Mr. Gower

It is not nonsense. That is how the law of nations develops. It may be regrettable, but that is how so many of our Dominions gradually acquired enlarged powers. They did so not by the passing of Acts in this House but by practice over many years.

Mr. S. Silverman

If the hon. Member's doctrine were true, we would be destroying the constitution of this House, which has a great many reserve powers. The House has exercised them, and ought to exercise them, only on the rarest occasions. Is the hon. Member saying that if we do not exercise these powers for long enough we lose them?

Mr. Gower

We are dealing with other countries. For example, in theory, just before the passing of the Statute of Westminster, we could have controlled the actions of the Canadian or Australian Governments.

Mr. Silverman

I am talking not about them but about us.

Mr. Gower

I am talking about us, and this is the matter at issue. In theory, immediately prior to the passing of the Statute of Westminster we could have controlled the actions of the Australian, New Zealand or Canadian Government, but in practice that would have been not merely inconceivable but impracticable.

Mr. Silverman

We are not talking about what is inconceivable or impracticable but a quite different proposition which the hon. Member advances, which is that if there are reserve powers which it has been impracticable to exercise, or which have not been exercised for long enough, they are lost. If that were true, then, in the instance of Canada, which the hon. Member himself gave, there would never have been any need to pass the Statute of Westminster, for the reserve powers would have disappeared.

Mr. Gower

In practice, there was no need for the Statute of Westminster.

Mr. Silverman

Then why pass it?

Mr. Gower

It merely put into formal shape what was a fact, and the hon. Member for Nelson and Colne (Mr. S. Silverman) is too good a lawyer not to know that it was a fact. I would have assumed that his knowledge of the law was sufficient for him to comprehend this fairly straightforward proposition. If we have a power which we can exercise over another territory and, for various reasons, we do not exercise it for a couple of generations, it is my thesis that we have ourselves created a convention by which that territory is that much more self-governing. In effect, the territory of Southern Rhodesia has been self-governing ever since 1923.

By the Government's proposals we are now to have a limitation of the powers of the Southern Rhodesian Government, a limitation which did not exist or has not existed for many years. It is a limitation in whose creation the Southern Rhodesia Government is voluntarily cooperating. Alongside that, we have the signs of liberalisation in Southern Rhodesia in the last twelve months, and there are many hopeful signs about this Territory.

While I understand the apprehension of the hon. Member for Huddersfield, West about the future of Africans in Southern Rhodesia, it is certainly not the worst part of Africa for an African to live in today. Nor am I referring to Colonies. I am referring to some territories which have become wholly-independent. In Southern Rhodesia the African has a good hope of enlarged opportunity, not only constitutionally but in an improving standard of life to go with it and all that we understand by an ordered society and the general prevalence of what we understand by the rule of law.

If all that is taken alongside the practice which has obtained for many years, then it would be a serious matter if the Opposition Amendment were accepted, for it would place the African in a position far worse than that which he would have if the Bill were passed. For that reason, I hope that the House will reject the Amendment.

8.44 p.m.

Mr. Jack Jones (Rotherham)

So far the debate has been primarily conducted by men of legal ability, with the usual arguments about the validity of the Bill and its legal effects. I want to consider it from the humanitarian point of view, speaking as a Socialist and trade unionist and wanting for the African exactly the same privileges as those which I have aspired to obtain for myself. The question is how soon the African can have what we have in this country, and whether the timing is right.

This is a vast problem. On the one hand, there are those who advocate complete self-determination by the Africans for Africa, and, on the other, those who argue that the time is not yet ripe for that. There is a case to be made on both counts. There is the African who says, "Get out Europeans. Go back home", but if the European came home and took out of Africa the medical and technical skill and the "know-how" which is at present available in that vast country, the Africans would be very much worse off than if the Europeans stayed there.

Today there have been celebrations marking the granting of the freedom of self-determination to Tanganyika. When I have discussed the problem of the Rhodesias with some of my colleagues, they have said that we gave India freedom, and we all know what happened immediately after that. There was a blood-letting which, please God, will not happen in the Rhodesias.

This is a vast country, with a potential wealth unknown to man. I have been privileged to go there as an ordinary fellow who knows something about iron ore and things of that kind. If there is one part of the world where a huge part of the natural potential is waiting to be exploited, or should I say used properly, it is this part of Africa. I say that the potential is waiting to be used properly, because at the moment the wealth of the country is being exploited. There are vast reserves of iron and copper ore which could be used in the interests of both Europeans and Africans.

This Bill provides for a Constitution which gives the Africans fifteen seats in the Legislature. If I were an African discussing this matter, I would ask myself what I ought to do. Ought I to agree to a Bill which enables me and my fellow-Africans to elect to the Legislature fifteen members who could in time prove that they were fitted to carry out the job of good government and prove that they were worthy of the support both of Europeans and of Africans to carry out Government procedure as it should be carried out?

Then there is the diehard European, and there are plenty of them living in affluent circumstances in Rhodesia. They live in the Copper Belt and say to themselves, "We have had a good time out of this. The Africans have been working like stink for low wages and we ought to try to keep the status quoand keep this country working under the present system which gives us the opportunity of exploiting and dominating the Africans as we have been doing for many years."

There are the two points of view. There are the Africans who overnight want what it has taken us centuries to get—and we are still quarrelling about the fact that we have not got where we want to be—and there are the extremist Africans who go around Nyasaland in particular making all sorts of fantastic promises to get people to go to the polls and vote them into power. Extraordinary promises have been made in that part of Africa.

Mr. Marsh

And in England.

Mr. Jones


Mr. C. Pannell

That is not peculiar to Africa. Hon. Gentlemen opposite also go round making extraordinary promises. One does not need a coloured skin to be taken in by promises.

Mr. Jones

I agree that this stats of affairs is not peculiar to Africans. Since the last Budget, and during the last fortnight, we have had evidence of the effects of exploitation and of the adroit, skilful way in which people use power. I do not need my hon. Friend the Member for Leeds, West (Mr. C. Pannell) to tell me about that. I have been watching the position since I left school, and that was a long time ago, but we are tonight discussing the Constitution of Southern Rhodesia.

How can the Government bring in a Bill which will not appease but satisfy both Europeans and Africans so that they will work together and come to an amicable arrangement to achieve what they both want? That is the task of the Government, and it is a big one.

The hon. Member for Barry (Mr. Gower) spoke about the improvement in multi-racial relationships. I agree that there has been an improvement in the last twelve months, but what puzzles me is why this improvement did not begin twenty or thirty years ago. It is all very well starting to improve relations once the pressure is put on, but why have they waited until the average African has said to himself, "The more pressure we put on, the quicker the Government will move"? The Government are saying, in return, "We are giving you what we believe is enough for you for the time being."

The question is whether this is to be regarded as the last word in respect of the Africans' opportunity for self-determination. Hon. Members opposite have said that Sir Edgar Whitehead has said that this is it. There is nothing that any Whitehead or redhead, or even fathead, in this or any other country has a right to say in this respect. Fortunately, Governments have the habit of constantly changing throughout the world, and the world itself is always changing. Tanganyika, today, is an example.

The Joint Under-Secretary will have an opportunity of telling me whether I am correct in this. I hope that he will tell us that this is merely a first stage and that there is a definite intention to bring about what is wanted by everybody who believes in democracy.

Mr. Marsh

Does not my hon. Friend agree that the important point in this argument is whether or not this House is prepared to relinquish its reserved powers despite the fact that the overwhelming majority of the people concerned, far from wanting independence, do not want to be cut off from us?

Mr. Jones

That is the issue before us. Does anybody out there want the Government to take away the power they have to see that the right thing is done eventually? A great onus is placed on the people out there. I can only look at the problem as I see it. Some people take the view that it should be a case of one man, one vote, and that everybody is entitled to a vote. Others may argue that some people, very unfortunately, are not in a position to be able to understand the use of a vote.

I have come across many educated Africans. There are thousands of highly educated and responsible African citizens in Africa, but there are tens of thousands of Africans who have not yet learned to use writing paper. At long last they are being given limited opportunities to go to school. Schools have generally been provided by companies which have done very well oat of Africa, particularly in the Copper Belt. But there are still tens of thousands of Africans living in the bush who have not yet been taught the use of toilet paper, never mind a ballot paper. There are poor, unfortunate people who have never had any opportunities, and who have a very primitive type of education. They have their own way of living, which at least brings about results. They live for themselves, as best they can.

I could say a lot about the multi-racial question. Progress is being made. We have African trade unions as well as white trade unions. But this is a lot of nonsense. Why should not every person who wishes to discuss with his employer the right pay for the right job be allowed to belong to one and the same union? The one place where the multi-racial question has been settled is on the Rhodesian railways. Sir Roy Welensky, himself an ex-railwayman, has encouraged the railway union to do a good job.

I do not want to go into details, but it is clear that hotels are also becoming multi-racial, at long last. What amazes me—and it would amuse me if the context were not so serious—is that if we visit one of the finest universities in the world we can see our coloured brothers and sisters sitting with their white colleagues eating their meals, sleeping in the same dormitories and being taught in the same class-rooms, but not being allowed to go to the local cinema with them. That is a lot of humbug which should have been chucked into the dustbin years and years ago. I hope that the Minister will be able to tell the House and the world, and Africa in particular, that this Bill is designed as a first step on the road to opportunity for those who want to bring about as soon as possible what Tanganyika has been given today.

Mr. Braine

Before the hon. Member resumes his seat, may I say that it is quite astonishing to consider the extent to which some hon. Members have not bothered to study the White Papers. There is no limit to the rolls. In fact, the very kind of economic and educational advance about which the hon. Gentleman has been speaking will enable an increasing number of Africans to go on to the rolls in the future. I hope that this will remove some of the misconceptions in the mind of the hon. Gentleman.

Mr. Jones

We want to be absolutely certain that increasing numbers of Africans will, as soon as possible, obtain the right to govern their own country in their own way, which will, I hope, be as satisfactory as the way in which this country will be governed if we had a Socialist Government.

8.56 p.m.

Mr. Patrick Wall (Haltemprice)

The real argument in this debate has been about safeguards for the future of the African people in Southern Rhodesia, the argument being advanced by those who believe that the existing reserved powers which have never been used since 1923 are of more value than a new Constitution which introduces a Constitutional Council and a Declaration of Rights.

I am glad that the hon Member for Rotherham (Mr. Jack Jones) got away from these rather legalistic arguments to discuss the economic and social developments in the country, because that is what really matters. I think that if the right spirit is there the legal difficulties can be sorted out. I believe that the spirit is there and, with other hon. Members, I was much encouraged by the results of the referendum.

My right hon. and learned Friend the Member for Chertsey (Sir L. Heald) pointed to the very rapid development in race relations and the advance of the African peoples which has occurred during the last few years in Southern Rhodesia. They have been accelerated during the last few months. The hon. Member for Rotherham referred to cinemas. I understand that now there is a law on the stocks, if I may use that expression, which will abolish any form of racial discrimination in cinemas, restaurants, or anywhere else, thus following the example of Northern Rhodesia. That shows that the Government of Southern Rhodesia have the right spirit. It also shows that they have the support of the majority of Europeans in that country. The real reason why this was not done earlier is that Sir Edgar Whitehead and the United Federal Party are like us politicians and depend on the votes of the electorate.

Mr. Marsh

Would the hon. Gentleman feel as happy about the future of the Africans if he knew there was a possibility of the success of the Dominion Party under Mr. Harper?

Mr. Wall

Quite honestly, I should not. But there is no chance of that now. The Constitution makes every candidate responsible both to the black and to the white electorate on both rolls. I should think that that would effectively rule out the success of many candidates of the Dominion Party. If the feelings which have been expressed —and which I share with the hon. Member to some degree—about the Dominion Party are true I do not think that its candidates will get many African votes, which would weigh strongly against them wherever they stand.

I wish to refer to a paper which I am sure a number of hon. Members have received from the N.D.P. There contains a resolution which, I understand, was passed at the annual conference of the National Democratic Party which took place on the 19th to the 22nd of October. The delegates at that conference unanimously passed a resolution condemning taking part in the forthcoming election under the new Constitution. They further resolved to fight relentlessly to achieve democracy and majority rule for the people of Southern Rhodesia.

I think that we can understand their aspirations and their desire for majority rule and one man, one vote. But I hope that the views expressed in this paper will not be put into effect by the more responsible leaders in the N.D.P. Surely the right way is to fight for what they consider are their rights, by registering first and then by exercising their vote. They may feel that 15 seats as against 50 seats for the Europeans is a poor percentage. But it is a good start, and Sir Edgar Whitehead has gone on record as saying that in his view Africans may well have a majority in that Parliament in about fifteen years' time.

It was not long ago that we were discussing the new Constitution for Kenya— the Lancaster House Conference of 1960 —and it was then expected that Kenya would gain its independence in eight or more years' time. Now many of us are talking about that country becoming independent in the next year or two. Accordingly, when it is being said that it will take fifteen years for Southern Rhodesia to have an African majority, it may turn out to be considerably less.

So I feel that the African people—if they hold the views of the N.D.P., and many of them do—will exercise their constitutional rights in a reasonable way and through the ballot box. As soon as this Constitution has been put into effect the weight of the African vote will have great effect in many constituencies in Southern Rhodesia In other words, I hope that they will fight with constitutional methods.

I hope, also, that they will hear about the debate we had on the independence of Tanganyika and will draw a lesson from that. Tanganyika has achieved independence faster than most of us had thought possible. This was because of good leadership, good race relations and a sensible economic policy. I hope that Tanganyika will become the leader of a new and greater Federation with the whole of East Africa which might, at a later date, be extended to Central Africa as well.

I hope that when this new Constitution is put into effect Sir Edgar and his Government will give consideration to repealing some of the legislation which has been referred to today. It was introduced in an emergency and I believe that the Government of a country have the right to introduce the legislation they consider necessary in an emergency. But race relations are said to be much improved and, if this is true, there is good case for looking at this legislation carefully in the hope that it will be possible to modify or withdraw it.

I hope that Mr. Nyandoro and Mr. Robert Chickerema—a personal friend of mine—who have been in detention for over two years without trial, will be liberated in the near future and will be able to play their democratic parts in building up a non-racial society in Southern Rhodesia.

Hon. Members should recognise that whatever criticisms we make of Southern Rhodesia and its Government we must all agree that that Government is proceeding in exactly the opposite direction to the Government of the Republic of South Africa. Anyone who goes to Southern Rhodesia from Britain, and who is not used to multi-racial societies, may feel bothered about some of the matters we have been discussing. But anyone who is routed to Southern Rhodesia from the North, that is, via the Cape, will immediately sense the difference in the atmosphere the moment he crosses that frontier.

Southern Rhodesia is the only country where we can hope for a truly non-racial society. It is highly developed and industrialised, with a great future, and l am sure that, just as we all wished Tanganyika god-speed when we passed the Second Reading of the Tanganyika Independence Bill, so we wish Southern Rhodesia and all races in that country god-speed in what virtually amounts to independence.

9.3 p.m.

Mr. H. A. Marquand (Middlesbrough, East)

The hon. Gentleman the Member for Haltemprice (Mr. Wall) very naturally referred to Tanganyika. We have all had that country very much in mind today, since we discussed Tanganyika earlier. I hope that all hon. Members agree that when we make constitutional changes—and it lies in our power still to make them in Africa—it is only prudent to derive what lessons we can from what has happened elsewhere in Africa.

As we look around Africa and consider how far African nations have been able to advance towards self-Government while maintaining political stability and avoiding any of the infringements of constitutional propriety and the rest of it, we find that many of them have done so reasonably well and that there has been reasonable success. Countries like Senegal, Tunisia, Sierra Leone, Nigeria—and, of course Tanganyika, whose independence we welcomed this afternoon—are all outstanding examples of how it is possible for African countries to advance, despite the low level of economic development which exists in certain parts. These nations have been able to establish stable government, toleration among the races and, as a result, a concentration upon economic development. They are going ahead well, and we are pleased when we go there and see what they are doing, or read about their activities. Yet elsewhere in Africa, in Katanga, Algeria and the Rhodesias, we find tension and strife.

What lesson can we derive from these examples? Surely the lesson is that where the minorities seek to maintain special privileges created in a past era their future is endangered by mounting hostility coming from emergent Africa. Where they have not sought to maintain special privileges by special constitutional safeguards and instruments, where they have recognised that the best safeguard of all is the good will of the majority, we find this comparatively peaceful movement forward to self-government and economic development. Surely this is the lesson of contemporary Africa, that the non-racial approach and the common roll are the best constitutional instruments for successful independence.

In Southern Rhodesia we are being asked to endorse a form of constitution which stops timidly short of the non-racial approach, which savours still of an expression which I thought it was a little significant that the right hon. and learned Member for Chertsey (Sir L. Heald) should use, the multi-racial approach. I am referring to the non-racial approach. In its time multi-racialism was, no doubt, a reasonable enough conception, the idea of giving a balance, a parity between two races, or a balance between three races in certain circumstances;but, as time has gone on, all experience seems to me to have proved that that was a mistake, and the most successful countries in Africa today are those which have got away from it—a country like Tanganyika which has got Europeans, considerable numbers of Asians and Africans, where, having made no attempt for some years past at any multi-racial balance but having agreed to go all in together, they now have a Government, as we know, under an African Prime Minister, which contains prominent European Ministers and very efficient Asian Ministers.

Tanganyika is going forward with unusually good prospects of success, provided that she can get reasonable economic aid from the richer countries. What has happened in Southern Rhodesia—let us face it—has caused so much dismay that it gravely imperils what we all want—peaceful co-operation by all the races in constitutional and economic development. I think it was most unfortunate that when this Constitution was put before the Southern Rhodesian Legislature on 21st June it was defended by Sir Edgar Whitehead in words which I feel, in spite of all that has happened since, one ought to read to the House.

I am quoting from the official journal of the Federation of Rhodesia and Nyasaland which is sent periodically to all hon. Members interested in these subjects. The Prime Minister, Sir Edgar Whitehead, said that if the proposals were not endorsed at the coming referendum he was certain that that opportunity would never come again, not even in six months' time. Sir Edgar told members that the proposals were regarded overseas as ' major concessions' and as ' exceedingly conservative'. Later, he said—I quote from the same document—that he was perfectly satisfied that if the reserve Clauses in the present Constitution were allowed to remain for a further period of years, they would develop from being a nuisance into a menace. and he spoke about the desirability of getting what he called negotiated independence.

In another of these publications, on 14th July, 1961, we read that Sir Roy Welensky, the Prime Minister of the Federation itself, told a radio audience on 30th June that it was a plain fact that the new Constitution will make Southern Rhodesia virtually completely independent within the framework of the Federation, free to legislate as it wishes without reference to the British Government, and free from the possibility of legislation being imposed upon it by Britain. The tone and the temper in which these constitutional changes were put before the Legislature of Southern Rhodesia and before the general public of Southern Rhodesia and the Federation were such as to arouse suspicion in the minds of African people. They feared that this was to be permanent and that there would be no change of any kind to which they could reasonably look forward, and that they would henceforth be entirely in the hands of the Southern Rhodesia white settler Government without any protection from the United Kingdom. Their suspicions of the motives behind the Constitution began to grow. We know that in the earlier stages their misgivings were nothing like so strong. The way this was sold to the white electorate was, in my view, one of the precipitants of the present awkward and difficult situation in Southern Rhodesia.

After the constitutional proposals had been put forward in that way to the white electorate of Southern Rhodesia, the situation grew steadily worse. The referendum took place on 26th July. In the Newsletterpublished by Rhodesia House here in London, we read on 28th July that troops of the Federal Army and police moved into certain African townships and other areas throughout Southern Rhodesia on 19th July, a week before the Referendum. The excuse for this was that the National Democratic Party had announced that demonstrations would take place from the 23rd to the 26th July, of a type—this was said openly and publicly—which would be legally and politically acceptable in any democratic country. The National Democratic Party was met by the use of the Federal army and police and local armed forces. When the leaders of the National Democratic Party wished, during the referendum, to put their case to electors and to the people of Southern Rhodesia generally, they were told that they could hold no meetings of more than 12 persons. There was a ban on meetings in the reserves and that ban was maintained.

This was the atmosphere in which the Constitution was put to the two races in Southern Rhodesia. The result of the attitude of the Southern Rhodesian attitude of the Southern Rhodesia Government and the Federal Government was that the most pro-Federation Africans in the whole of Africa became as strongly anti-Federation as any, and they remain full of suspicion about the new Constitution.

We have been reminded—we welcome it—that since the Constitution was approved by the Legislature and by the referendum, speeches of a different sort have begun to be made and that improvements have been carried through the Legislature. We know, and we welcome, that the Land Apportionment Act has been amended. Although, in my opinion, it still could do with a good deal more amendment, the purchase area has been increased. We know also that the Immorality Act has been repealed. There has been the court decision that the swimming baths at Salisbury are open to all and should not be closed in a discriminatory manner. We know many other similar encouraging facts, some of which have been given by hon. Members in the debate, and I need not attempt to repeat them. To quote again from the Newsletter,we know that Sir Edgar Whitehead, when he opened the United Federal Party Congress in Salisbury on 5th October, said: The maintenance of straightforward white supremacy was as dead as the dodo. It was essential that there should be no artificial barriers between the races. We must regard each other as Rhodesians and build up a greater prosperity. I welcome these statements wholeheartedly. I only wish that this sort of thing had been said much earlier and that there had not been this absurd cultivation of the Dominion Party and this attempt to sell the Constitution to the white electorate of Southern Rhodesia as a permanent brake on African advancement and a permanent barrier to the removal of racial discrimination.

Despite whatever improvement there has been in the speeches of Southern Rhodesian leaders—and I welcome it— the fact remains that what the House of Commons is asked to do tonight is to approve the Constitution. We cannot get away from that fact. Whatever comfort we may draw from this or that improvement in what was certainly a very bad situation, we must address our minds tonight to the question—Is this a satisfactory Constitution? The House well knows already the defects of that Constitution.

I had it in mind to say something about those defects, but, in the interests of not taking up too much time, I can abandon that because my right hon. and learned Friend the Member for Newport (Sir F. Soskice) riddled the Constitution with criticism. Using his immense legal knowledge and great experience in constitutional matters in many parts of the world, he examined the Constitution in a way that no one else could have done, and no reasonable hearer could have been left in any doubt that this Constitution just will not do.

Since I had previously said something about this matter in an earlier debate, I particularly welcomed the thorough way in which my right hon. and learned Friend criticised not merely the safeguards but the Declaration of Rights itself. After the thorough and careful examination which we have conducted in two successive debates, I do not see how any fair-minded person can be left in doubt that the only sure guarantee for non-discrimination and successful African constitutional advance lies in the franchise. Everything depends on that.

The more we analyse the constitutional proposals, the more we come back to this. The recommendations of the Constitutional Council can be set aside by certificates of urgency or by outright repeal by the Legislature by a two-thirds majority at once or by a simple majority after six months. The only effective safeguard which Africans can have under this Declaration of Human Rights and these provisions for a Constitutional Council lies in a sufficient number of representatives in the House to block that kind of attack on the Constitution.

It was a remarkable thing, I thought, that the right hon. and learned Member for Chertsey, whose speech immediately followed that of my right hon. and learned Friend the Member for Newport, did not attempt to reply in any way to the criticisms of my right hon. and learned Friend. I feel sure that if the right hon. and learned Gentleman thought that he had a satisfactory legal argument to put against what my right hon. and learned Friend said he would have used it. All that the right hon. and learned Gentleman could do was to draw our attention to these welcome phrases, which I quoted earlier, coming from Sir Edgar Whitehead and others, these welcome improvements in social behaviour.

What the right hon. and learned Gentleman was asking us to do was to welcome a thoroughly had Constitution because some people have made nice speeches and have begun to make appropriate social and racial gestures. This is simply not good enough. As a House of Commons, we cannot, and ought not to, accept a Constitution which we find to be full of defects simply because there appears to be somewhere a slight ray of hope on the horizon that the white majority in the Southern Rhodesian Parliament might be a little more wise than it appeared to be when the Constitution was put over.

Who can be sure that after the Constitution is approved by this House, there might not be a reversal to the previous attitude? That attitude lasted for a very long time. I say again that the only firm foundation for racial harmony can be acceptance by the majority of the people —the 2½million Africans of the country —of its justice and of its fair play. This is the hope for racial harmony and for continued existence and prosperity of white people and Asians as well as Africans in Southern Rhodesia. It is because we want this that we should like to see in the Constitution a far more emphatic guarantee of an adequate African representation here and now in the Legislature. If we had that, the rest of the Constitution might be accepted, because as time passed it could be improved. Without that, we have no guarantee whatever that it will be improved.

The Africans, therefore, cannot be expected to accept this new Constitution as satisfactory because they have no effective means of changing it. We cannot ask them, as the wind of change blows furiously down through Africa, to wait for the sweet by and by. Everywhere else they see rapid advance. They see everywhere else that it is possible for the races to live in harmony and that it is possible for white men and Africans to accept as their best safeguard the good will of the majority. They cannot understand—I do not blame them;I do not understand either—why this proved experiment cannot be tried in Southern Rhodesia.

After our last debate, I appealed for second thoughts. I asked the Government whether they would not think again about it, even though I knew that they were heavily committed already to the Southern Rhodesian leaders. I asked the Prime Minister whether he would meet the African leaders, whom I and many of my hon. and right hon. Friends have seen. They themselves made an appeal and said, "Could we as a last resort, since we are still the protected subjects of Her Majesty, approach Her Majesty's principal Minister, as it were, as a second court of appeal?" The Prime Minister said that he would consult his right hon. Friend the Secretary of State. The only result from that was that when they came to London, the African leaders, Mr. Nkomo and others, saw the Duke of Devonshire. They might have mistaken somebody with such a title for a tribal chief, but he was no more than the Under-Secretary of State for Commonwealth Relations. Of course, he did not carry the authority, prestige or power to do much about this.

I am not criticising the noble Duke for anything he did there—I am certain that he did his best and was, as usual, extremely courteous to his visitors—but they went away from that conversation with him with the impression that because Southern Rhodesia is becoming an increasingly industrialised country, because large numbers of United Kingdom firms have interests there and because of these interests of the United Kingdom and of powerful financial groups and companies in the Rhodesias generally, it was felt that Africans could not be trusted with the same extension of political power that they have in the less developed parts of Africa. That is the impression that they were left with.

They had, as I say, attempted to conduct their appeals to their own people in an atmosphere of armed force, prohibited from entering the reserves, unable to address satisfactory meetings of any size, with many of their leading members still lying in detention under detention orders. They were full of suspicion and fear and nobody met them. Nobody tried to explain to them, if it could be explained, why those fears were unjustified. Nobody gave them reassurance. They went away from this final interview—this last effort that they made by coming specially to this country—with the Joint Under-Secretary of State, the noble Duke, utterly despondent, feeling that there was no hope.

Now they have sent to us, as the hon. Member for Haltemprice has already quoted, this message which we all received today, in which they explain in detail why they still feel completely distrustful of the present constitutional proposals. They say at the end of this memorandum: We know that it would have been easier for us to win the 15 seats apportioned to the 3 million Africans. Our Party would then be helping the Government of Whitehead to preserve white domination and, it is easy to imagine, the N.D.P. would then not be threatened with being banned, and its leaders would become ' respectable'. We reject this easy way and choose the way of strife that lies ahead. By rejecting the constitution we lay ourselves open to arrest, but this path will lead us to the desired end quicker than helping Whitehead to maintain white supremacy". Frankly, I regret their decision not to contest the election. On this side of the House more than one of us has privately given them advice to contest the seats and use their position in Parliament as we use ours, as a platform from which to proclaim their views. They have decided otherwise. I am doubtful whether what I am saying now will be able to influence them any longer.

It has been a long, tragic story. From the beginning of the launching of this move there has been far too much effort to convince the extreme reactionery section of white opinion in Southern Rhodesia that the constitutional change was acceptable by selling it to them as independence as complete self-government for the white settlers and a ban on African advance.

There has been far too little effort to seek out and explain to African leaders. There has been a terrible failure to permit these moderately minded, sensible, well-educated men to get among their people and explain what it is they want to do. Some part of that failure, I think, rests upon the shoulders of Her Majesty's Government. Most of it rests elsewhere, I know, in Southern Rhodesia, but I wish there could have been a more careful and patient effort to get in touch with them, to keep in touch with them, and to explain to them what the situation was, and perhaps to bring in at the end one of the great Commonwealth Leaders who might have taken part in discussions of this kind with them and changed the situation. There would have had to be a change on both sides if it were to succeed.

But it has not. It has failed to get full African co-operation. It is a tragedy. I hope it will not prove to be a long-term tragedy. I hope that when this Constitution is approved by this House —as, of course, we know it will be tonight, though we shall vote against it because we regard it as unsatisfactory— somehow or another light may emerge later on.

I would appeal to Africans to accept any olive branch which may still be offered to them and not to feel that this is the only way for them to achieve what they need, not to follow the road of Cyprus and other countries in the Commonwealth which have been able to achieve the independence of which they were thoroughly justified only by resorting to violence. I hope that will not happen. I hope that in some way, even when the Constitution is passed, the Africans may be assured that it can and will be amended, and soon.

But as it is, the Constitution is a bad Constitution. We cannot accept it, and we shall register our opinion of it in the Division Lobby tonight.

9.31 p.m.

The Secretary of State for Commonwealth Relations (Mr. Duncan Sandys)

I fully share the desire of the right hon. Gentleman the Member for Middlesbrough, East (Mr. Marquand) to see all sections of the population in Southern Rhodesia playing their full part in its political and economic progress; and I regret, with him, that there should be a substantial section of African opinion which is at present minded not to play its part in the political development under the new Constitution.

But I will revert to that point a little later. There are a number of questions which were put to me and a number of criticisms which were raised, and I should like to deal with as many of them as I can in winding up this debate.

The right hon. and learned Gentleman the Member for Newport (Sir F. Soskice), as he always does, spoke with great clarity and precision, and he asked me—and the same question was put to me by the hon. Gentleman the Member for Huddersfield, West (Mr. Wade)— an important question about the interpretation which will be put upon the term "racial discrimination" in applying the new Constitution. He asked specifically whether racial discrimination in the letter of a law which may in future be passed meant that the law would apply specially prejudicial or favourable clauses and conditions to races named in the law.

I can give the right hon. and learned Gentleman the absolute assurance that the Constitution is not intended to have that effect. The intention is that discrimination shall be interpreted as the consequence of the law, the effect of the law. If the natural consequence of the law, even though it does not mention a particular race, is to prejudice or to favour a particular race as distinct from other races, then, even though it does not mention that race in the law, that will be regarded as discriminatory.

My advice is that the section of the Declaration of Rights as now worded has that legal interpretation, but in view of the legal experience of the right hon. and learned Gentleman I propose to have it looked at again, to make sure that the intention is, in fact, reflected in the wording.

The hon. Gentleman the Member for Huddersfield, West also asked me a question about paragraph 75 (3) of the Detailed Provisions of the Constitution. As the House will remember, we issued two White Papers, one in more popular terms, a summary, and one giving more detailed provisions. He asked whether the Crown would act on the advice of the Government of Southern Rhodesia, or on the advice of the Government of the United Kingdom when considering whether to approve an amendment to the Constitution, or whether to require an amendment to be referred to a referendum of the racial communities in Southern Rhodesia.

This should be read in conjunction with paragraph 54 of the Summary, which is perhaps in more readable language, and there is also a reference to it in the Report of the Constitutional Conference last January. Both these make it quite clear that the discretion in this matter will rest with the Government of the United Kingdom and not with the Government of Southern Rhodesia; and that it will be on the advice of the Government of the United Kingdom that the Crown will act on matters of this kind. I think that that meets the hon. Member's point.

I was asked about money Bills, and several hon. Members criticised the fact that money Bills are excluded from the provisions of the Declaration of Rights in respect of discrimination. The main reason for it is a very simple one and a practical one. We had long discussions about this. I was in favour of including everything in the first place, but I was convinced that it was not a practicable proposition.

In a country where there are very wide differences in the standard of living and incomes of the population and those differences are, by and large, reflected in or coincide with the racial differences, it is almost impossible to frame any taxation which will not be in practice discriminatory against Europeans. Anything in the way of Income Tax or Surtax is almost bound to be so. To follow up the right hon. Gentleman's desire that the discrimination should not only apply where the race is mentioned, but where the natural consequences are to prejudice a racial community, any law of that kind—taxing people according to income, which is the natural procedure nowadays—would inevitably be thrown out by any constitutional council or court of law if the discriminatory provision had covered it. I hope that that is a sufficient answer to that question.

The right hon. and learned Member for Newport spoke a good deal about the reserved powers. He said that the British Government possesses, in his own words, "powerful and effective reserve powers which it is giving up without obtaining adequate and alternative safeguards. "The right hon. and learned Gentleman admitted that these powers have never been used, but he said that the fact that they existed had a restraining influence and had the effect of preventing the passage of discriminatory legislation which otherwise would get on to the Statute Book.

I do not say that there may not have been cases where that has happened. All I can say is that that hardly ties up very well with the right hon. and learned Gentleman's complaint that in I960 discriminating legislation of what he described as the most Draconian kind was passed. Therefore, the deterrent effect of these powers cannot have been very great. As I have explained, these powers have proved most ineffective and both Labour and Conservative Governments have found them, in practice, virtually impossible to use. Some of the most keenly discriminating legislation on the Statute Book of Southern Rhodesia, including the original land apportionment law, and one of the most hated native pass laws, were passed with the approval of a Labour Government.

I am not criticising the party opposite —I make that quite clear. I only quote these examples to support my contention that, in practice the reserved powers have proved unusable, and that the safeguards provided under the new Constitution will be infinitely more effective. Otherwise, I say it frankly, I would not have looked at this, because I recognise my responsibility to see to it that the interests of the African population now, and of the European population at some future date, shall be properly safeguarded.

Criticism was made of the Constitutional Council. We are, of course, now going over the same ground that we have been over in two or three previous debates—everyone recognises that—and the answers are much the same as those given on the previous occasions. The criticism was that the powers of the Constitutional Council are purely advisory. I accept that they are purely advisory; but it is very powerful advice.

Much thought was given to this. Again, I say to the House that I originally started with the idea that there should be some kind of veto on laws by the Constitutional Council, but I was convinced to the contrary by others. No one took a stronger view on this than the African representatives at our constitutional conference, including the members of the National Democratic Party—in fact, I would say more by them than by some of the others, because they included a prominent lawyer.

Those who opposed the idea of a veto by the Constitutional Council did so on the very good grounds that it is a bad thing to duplicate the jurisdiction of the courts. In the Declaration of Rights we lay down that any law that is racially discriminatory is void, and can be tested by an action in the courts. If, in addition to that, we have another body which can also veto a law, we really begin to get into a most frightful confusion. The Constitutional Council can veto it, but if it has not done so, someone may take it to the courts. We then have two bodies doing the same job. I must say that I was convinced by that argument.

Reference was made—and I do not wish to avoid any difficulties—to what might be called escape clauses. Any one who studies any Declaration of Rights, whether it is the Charter of the United Nations, or of Nigeria, or India, or Ceylon, or Sierre Leone or wherever it may be, will find that it has been quite unavoidable and inevitable to put in certain escape clauses, particularly in regard to conditions of emergency.

After all, we in this country, when there is a threatened railway strike or something like that, have to declare a state of emergency, and ask this House to give us powers to do all sorts of very arbitrary things which run right contrary to the normal provisions of any Declaration of Rights. The Government of a country must, in certain circumstances, take whatever measures are necessary for national defence, or for feeding the population or for maintaining order, and it would be quite intolerable for a Government not to be able to discharge what is their main and basic function.

The right hon. and learned Member for Newport complained that the courts were being asked to perform a political job in assessing whether or not a particular law was discriminatory, and in deciding whether these various qualifying clauses applied or did not apply. Of course, any discussion of a case in a court of law which involves human rights is almost bound to have some kind of political tinge about it, for it will probably involve such things as free speech and freedom of movement. There is almost bound to be some political aspect. This matter was very fully considered. It did not escape our notice, and we came to the conclusion that, if an outside body was to be put over the Legislature—and it is a very serious thing to give an out- side body power to veto what the elected representatives of the people decide— then it would not be appropriate that it should be an unelected and unprofessional body. It seemed to us that, in the last resort, the matter must, if it was a matter of law, be left to the courts to decide.

Mr. Elwyn Jones

I am sorry to revert to the point which the right hon. Gentleman has just passed, but is he aware that the "escape clauses", as he described them, to which objection is taken by my right hon. and learned Friend the Member for Newport and myself, are set out in Section 11 (4) of the Detailed Provisions, and that we were not complaining in terms of the "escape clauses" in Section 13, which relates to periods of emergency. It is, therefore, no answer to say that one has to deal with the continuation of emergency with special powers and special reservations.

Mr. Sandys

One of those Sections to which the hon. and learned Gentleman has referred concerns the economic side of Southern Rhodesia. If one suddenly said that all discrimination was to disappear, one would be faced with fearful problems—in European schools, for example. Would one cut off money overnight for these schools and say that everything must be equalised and levelled down instantly? That would be the effect.

One must recognise that there are deep cleavages between the conditions which exist in the African areas and those which exist in the European areas. I am not lagging behind any hon. Member in wanting to see an integrated Southern Rhodesian population, all working together for the common good without distinction of race or colour, but it is unrealistic to imagine that one can overnight sweep away all these differences. There must, therefore, in what is essentially a transitional period, be ways which will allow the courts to interpret these things in a practical and reasonable way.

Several hon. Members said that there must be further progress. They were thinking in particular of the political side. The right hon. Member for Middlesbrough, East referred in particular to the importance of the franchise. I was asked whether there was much prospect of the franchise being widened under this new Constitution. The right hon. and learned Member for Newport expressed the view that there was not much prospect. He is usually so clear and logical in argument, but in this Case he said that by giving up the reserve powers the pace of African political progress would be slowed down.

If he would think about it, however, he would see that these powers are powers of veto. By no stretch of the imagination could they be used to widen the franchise or to give increased representation to the Africans in the Legislature. If it was thought that a new law gave insufficient advance, it could only be vetoed, in which case things would remain as they were.

The hon. Member for Huddersfield, West said that Mr. Garfield Todd had criticised the new Constitution and had said that it did not represent a sufficient political advance. It may be that Mr. Garfield Todd takes that view, but, in fairness to others, it should be remembered that the present franchise which has produced not a single African in the Legislature, was the work of Mr. Garfield Todd. It is always easy when one does not have responsibility to be very free and easy in what one suggests might be done by others.

The right hon. and learned Member for Newport and others complained that the reserve powers of the British Government were being ceded once and for all —those were his words. In theory, he said, they could be taken back, but in practice the possibility of the Parliament at Westminster upsetting a constitution once given was nil. That is broadly true. Once this Parliament has given a constitution which represents an advance towards self-government to any territory in Her Majesty's Dominions, in practice it is not possible to go backwards and to withdraw those powers.

However, as my right hon. and learned Friend the Member for Chertsey (Sir L. Heald) pointed out, that completely torpedoes the right hon. and learned Gentleman's whole complaint that while this Constitution was a step in the right direction, it did not go far enough. He and his hon. Friends propose to vote against it tonight because it does not go far enough, but everybody recognises that it goes a very long way further than anything thought possible as short a time as a year ago.

The fact that hon. Members opposite will vote against the Constitution tonight implies that Her Majesty's Government in the United Kingdom, if they wanted, could have put forward a Constitution to provide a wider franchise and bigger representation for Africans in the Legislature. That is not the fact. The right hon. and learned Gentleman has made it clear that, having nearly 40 years ago given a constitution, which is virtually self-government at home in Southern Rhodesia, subject only to certain veto powers, it would be constitutionally improper and impracticable for us, without the consent of Southern Rhodesia, to impose upon it a new constitution with a much wider representation to Africans, if we thought that that was right and desirable.

The outstanding feature of the new Constitution is that it provides far-reaching advances for the Africans with the full consent of the Europeans. It is an historic and almost unique event that an overseas territory of this kind, with the overwhelming consent of the Europeans, should give a big political advance to the Africans. The extent of the advance was approved by a large majority of the existing electorate. When there is an electorate, it cannot just be brushed aside. Things cannot be decided by an unofficial referendum organised by some outside party. Reference was made to the N.D.P.'s independent referendum, but when there is an electorate set up under a constitution, some attention must be paid to it. It was remarkable that the electorate approved this new Constitution by a large majority. That is a measure of the practical spirit of co-operation between the races which is daily becoming more apparent.

Mr. Marquand

Will the right hon. Gentleman answer the question he posed earlier? I was eagerly awaiting the answer to his question, what was the hope of further enfranchisement under this Constitution?

Mr. Sandys

I will answer it now. I am going to allow myself to slip over the hour, if that is permissible. It is a great pleasure sometimes to be able to speak without having to look at the clock.

This new Constitution will provide a quarter, or probably rather more than a quarter, of African seats in the new Legislative Assembly. That is virtually the certain result. There will be about fifteen, and probably another three, making a maximum of eighteen seats at the first election. I think that most people would agree with that.

The European parties have been fairly evenly divided. We talk about fifteen or seventeen African seats and so many European seats, but I cannot believe that that is how the thing will work. The United Federal Party, which is the majority party today, is going to put up a number of African candidates. I cannot believe that during the period ahead any Government in Southern Rhodesia will be able to carry through their policies effectively and maintain a reasonable majority while ignoring the African members of the Assembly. Of course they will need their support.

No doubt the African members will support them against other parties on taxation, road transport, and all sorts of other matters which have nothing to do with race, and from time to time will ask, "What about us? If you want votes in the predominantly African constituencies, you have to do something about the Africans, and they are asking for an enlargement of the franchise." I believe that it is far better to get progress and a widening of the franchise for the Africans by the exercise of political pressures through the ordinary Parliamentary system and procedures, and the necessity to gain votes, and the necessity to maintain a majority in Parliament, than by having periodical conferences in Lancaster House and by

Division No. 3.] AYES [10.0 p.m.
Agnew, Sir Peter Browne, Percy (Torrington) Courtney, Cdr. Anthony
Aitken, W. T. Bryan, Paul Craddock, Sir Beresford
Allason, James Buck, Antony Critchley, Julian
Atkins, Humphrey Bullard, Denys Crosthwaite-Eyre, Col. Sir Oliver
Barlow, Sir John Bullus, Wing Commander Eric Crowder, F. P.
Batsford, Brian Butler, Rt. Hn. R.A. (Saffron Walden) Cunningham, Knox
Bell, Ronald Campbell, Sir David (Belfast, S.) Currie, G. B. H.
Bennett, F. M. (Torquay) Campbell, Cordon (Moray & Nairn) Digby, Simon Wingfield
Bidgood, John C. Carr, Compton (Barons Court) Donaldson, Cmdr. C. E. M.
Birch, Rt. Hon. Nigel Carr, Robert (Mitcham) Doughty, Charles
Bishop, F. P. Channon, H. P. G. Drayson, G. B.
Black, Sir Cyril Chataway, Christopher du Cann, Edward
Bossom, Clive Clark, Henry (Antrim, N.) Duncan, Sir James
Bourne-Arton, A. Clark, William (Nottingham, S) Eden, John
Box, Donald Cleaver, Leonard Elliot, Capt. Walter (Carshalton)
Boyd-Carpenter, Rt. Hon. John Cooper, A. E. Elliott, R.W. (Nwcstle-upon-Tyne, N.)
Boyle, Sir Edward Cooper-Key, Sir Neill Emmet, Hon. Mrs. Evelyn
Braine, Bernard Cordeaux, Lt.-Col. J. K. Errington, Sir Eric
Bromley-Davenport, Lt. -Col. Sir Walter Costain, A. P. Fair, John
Brown, Alan (Tottenham) Coulson, J. M. Fell, Anthony

the British Government arranging it all over their heads.

I should like to say something about this question of discriminatory laws, because the general trend of discussion has been rather that any discriminatory law must necessarily be bad for the Africans and ought to be abolished right away. All discriminatory laws are not necessarily unfair, and many of them are specifically designed to protect the interests of the Africans.

Mr. Kona, the President of the Southern Rhodesia African Farmers' Union, said in a speech the other day that the repeal of the Land Apportionment Act—about which we have heard so much—unless accompanied by some new protective measures would be even more disastrous to Africans than its continued implementation; and I believe that there are a number of laws designed for the protection of Africans which it would be disastrous to remove.

A good deal has been said during the debate about the National Democratic Party, and the fact that it is not taking part in the election under the new Constitution—

It being Ten o'clock, the debate stood adjourned.